Submitted: June 29, 2007.
Decided: August 8, 2007.
Upon Consideration of Defendant's Second Pro Se Motion for Postconviction Relief.
CR. A. NOS: IN04-03-1737-R2; IN04-03-2717-R2; IN04-03-2718-R2.DENIED.
This 8th day of August, 2007, upon consideration of the Motion for Postconviction Relief brought by Defendant, Jason Mills, it appears to the Court that:
1. On June 29, 2005, Jason Mills ("Defendant") was convicted by jury of criminal impersonation and possession of a firearm and ammunition by a person prohibited. On September 9, 2005, Defendant was sentenced to five years of mandatory incarceration at Level V followed by probation. On April 17, 2006, the Supreme Court of Delaware affirmed the conviction and sentence.
Docket Item ("D.I.") 33.
D.I. 38, Sentencing Order.
Mills v. State, 2006 WL 1027202 (Del. Apr. 17, 2006).
2. On May 10, 2006, Defendant filed his first Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). Defendant sought relief on two grounds: (1) ineffective assistance of counsel; and (2) due process violations. This Court denied the motion on August 7, 2006 because Defendant failed to show that his counsel's alleged errors prejudiced the outcome of the trial. Additionally, the Court addressed and dismissed Defendant's allegations of due process violations.
D.I. 47, Motion for Postconviction Relief.
State v. Mills, 2006 WL 2270857, at *3 (Del.Super.Ct. Aug. 7, 2006). See also Strickland v. Washington, 466 U.S. 668 (1984) (explaining two part-test of ineffective assistance of counsel: (1) counsel's performance was outside the objective range of reasonable professional judgment and (2) such deficiency prejudiced the outcome of defendant's trial).
Mills, 2006 WL 2270857, at *3.
3. On June 29, 2007, Defendant filed the motion sub judice, his second Motion for Postconviction Relief, alleging: (1) ineffective assistance of counsel because his counsel failed to provide D efendant with pre-trial and trial transcripts in preparation for direct appeal; (2) ineffective assistance of counsel because his counsel failed to consult Defendant in preparation for direct appeal and failed to raise certain issues upon Defendant's request; (3) ineffective assistance of counsel because counsel failed to object to the State's exclusion of a juror based on race; (4) prosecutorial misconduct because a State's witness testified as to Defendant's criminal history during direct examination after the Court held that Defendant's criminal history was excluded under Rule 404(b) of the Delaware Rules of Evidence ("D.R.E. 404(b)"); (5) judicial misconduct because the trial judge gave a curative instruction regarding the w itness' reference to Defendant's criminal history in contravention of the Court's prior exclusion of this evidence under D.R.E. 404(b); and (6) judicial misconduct because Defendant's right to a fair trial was prejudiced by the trial judge's curative instruction.
See DEL. R. EVID . 404(b) ("Other crimes, wrongs or acts — Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.").
D.I. 55. The Court notes that Defendant has alleged six separate grounds for relief, however, claim six is a continuation of claim five and the two claims will be consolidated and addressed as one.
4. Before addressing the merits of any postconviction relief claim, the Court must determine whether the claims pass through the procedural filters of Rule 61. Rule 61 imposes four procedural imperatives on a defendant's motion: (1) the motion must be filed within one year of a final order of conviction; (2) any basis for relief must have been asserted previously in any prior postconviction proceedings; (3) any basis for relief not asserted in the proceedings below as required by the court rules is subsequently barred unless defendant can show cause and prejudice; and (4) any ground for relief must not have been formerly adjudicated in any proceeding unless warranted in the interest of justice. Under Rule 61(i)(5), a defendant may avoid the first three procedural imperatives if the claim is jurisdictional or is "a colorable claim that there was a miscarriage of justice because of a constitutional violation."
See Younger v. State, 580 A.2d 552, 554 (Del. 1990) (stating that the court will not address the substantive merits of defendant's motion for postconviction relief if the claims are procedurally barred).
The Court notes that as of July 1, 2005, Rule 61(i)(1) allows for one year to file a motion for postconviction relief after a judgment of conviction becomes final.
SUPER. CT. CRIM. R. 61(i)(5).
5. A judgment of conviction is final for purposes of postconviction review under the following circumstances:
(1) if the defendant does not file a direct appeal, 30 days after the Superior Court im poses sentence; (2) if the defendant files a direct appeal or there is an automatic statutory review of a death penalty, when the Supreme Court issues a mandate or order finally determining the case on direct review; or (3) if the defendant files a petition for certiorari seeking review of the Supreme Court's mandate or order, when the U.S. Supreme Court issues a mandate or order finally disposing of the case on direct review.
SUPER. CT. CRIM . R. 61(m).
6. Defendant's motion is procedurally barred. First, Defendant's motion was not filed within one year of the Supreme Court's mandate or final order of conviction. For purposes of this motion, pursuant to Rule 61(m), Defendant's conviction either became final on April 17, 2006 when the Supreme Court finally determined the case on direct appeal, or on May 8, 2006 when the mandate was issued. Defendant filed the motion sub judice on June 29, 2007, more than one year after the Supreme Court issued its final order and mandate. Second, Defendant's six grounds for postconviction relief are procedurally barred under Rule 61(i)(2) because Defendant did not raise the claims in his first motion for postconviction relief. Third, Defendant's claims premised on prosecutorial misconduct and judicial misconduct are procedurally barred under Rule 61(i)(3). Defendant has not shown cause for failing to raise these claims at a prior proceeding, nor has he show n that "there was a `substantial likelihood' that, if [the issues had been raised] during his appeal [or prior postconviction relief proceeding], the outcome of his case would have been different." Moreover, it is immaterial that the defendant can show cause if he cannot prove prejudice. Even if the Court assumes Defendant satisfied the cause prong, Defendant has not made any showing of a "substantial likelihood" that the outcome of his trial or direct appeal would have been different.
SUPER. CT. CRIM. R. 61(i)(1).
Mills, 2006 WL 1027202 (affirming Superior Court's conviction of Defendant).
The Court notes that Defendant was indicted and convicted prior to the July 1, 2005 amendment shortening the time limitation of Rule 61(i)(1) from three years to one year from the date a judgment of conviction is final. The Court sentenced Defendant on September 9, 2005 and the Supreme Court of Delaware issued its final order affirming the conviction on April 17, 2006, well after the July 1, 2005 amendment became effective. See SUPER. CT. CRIM. R. 61: Revisor's note. — The 2005 order amending (i) provided: "This amendment shall be effective on July 1, 2005 and shall apply to all cases where the judgment of conviction became final after the effective date."
See SUPER. CT. CRIM . R. 61(i)(2) (barring any ground for relief not asserted in a prior postconviction proceeding). See also Mills, 2006 WL 2270857, at *1 (denying Defendant's grounds for relief: (1) ineffective assistance of counsel because "counsel failed and/or refused to file a motion to suppress evidence" and counsel filed a motion to withdraw; and (2) due process violations).
Flamer v. State, 585 A.2d 736, 748 (Del. 1990). See also Blackwell v. State, 736 A.2d 971, 972 (Del. 1999) (requiring defendant to show "cause" and "actual prejudice" to raise additional claims not previously asserted in a postconviction proceeding); SUPE R . CT . CRIM . R. 61(i)(3).
See Grosvenor v. State, 849 A.2d 33, 35 (Del. 2004) (deciding the procedural bar of Rule 61(i)(3) based on the prejudice prong without definitively deciding the cause prong). See also Dawson v. State, 673 A.2d 1186, 1191-92 (Del. 1996) (stating that when a defendant fails to establish either of the two prongs, the court need not consider whether the defendant established the other prong).
See D.I. 55 (providing Defendant's reason or "cause" for his failure to raise these grounds in a previous postconviction proceeding: "Grounds one, two, three all these grounds never been raised. Because there was a communication issue with my lawyer and myself. Defendant lawyer Didn't give Defendant to proper information or transcrips [sic] before Defendant appeal was file Defendant still hasn't receive all is transcrips [sic] it was too much issue Defendant could of Raise without is Trasnscrip [sic].").
7. Defendant must avail himself of the Rule 61(i)(5) fundamental fairness exception to overcome the procedural bars imposed by Rule 61. The fundamental fairness exception allows a defendant to avoid the first three procedural bars if (1) the court lacked jurisdiction or (2) Defendant states a colorable claim that must be remedied to avoid a miscarriage of justice. This exception, however, is narrow and Defendant has the burden of proof to show that there has been a deprivation of a substantial constitutional right that "undermined the fundamental . . . reliability" of the prior proceedings. The Court will address Rule 61(i)(5) in connection with each of Defendant's claims because he has framed his claims as constitutional deprivations.
See SUPER. CT. CRIM. R. 61(i)(5) ("The bars to relief . . . shall not apply . . . to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity, or fairness of a proceeding leading to the judgment of conviction.").
Id. See also Webster v. State, 604 A.2d 1364, 1366 (Del. 1992) (remanding case to Superior Court to determine whether defendant's guilty pleas were knowing and voluntary in order to determine the applicability of the fundamental fairness exception).
SUPER. CT. CRIM. R. 61(i)(5). See also Younger, 580 A.2d at 555 (limiting application of fundamental fairness exception).
A. Ineffective Assistance of Counsel
8. Defendant's first three grounds for relief allege ineffective assistance of counsel. The Court's analysis of an ineffective assistance of counsel claim is governed by the two part-test set forth in Strickland v. Washington. Defendant "must show that his counsel's representation fell below an objective standard of reasonableness, and that but for his counsel's errors, the outcom e of the trial w ould have been different." "[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." A court need not address both prongs if the defendant makes an insufficient showing on one. The defendant must also overcome a "strong presumption that the representation [provided by counsel] was professionally reasonable"
466 U.S. 668 (1984).
Strickland, 466 U.S. at 697 (explaining that a court may address either the performance prong or the prejudice prong first).
Flamer, 585 A.2d at 753.
9. First, Defendant alleges that he was denied effective assistance of counsel because his counsel's failure to provide him with pre-trial and trial transcripts interfered with his ability to raise the "right issues" on appeal and this, in turn, denied him a "better chance" of success. Second, Defendant alleges that he was denied effective assistance of counsel because his attorney "filed [Defendant's] direct appeal without any input or assistance from Defendant" and Defendant's counsel did not raise issues that Defendant requested his counsel to raise on appeal. Defendant's final ineffective assistance of counsel claim alleges that his counsel failed to object to the prosecution's striking of a potential African-American juror and this failure led to a jury that was "stack[ed] against Defendant" and a jury that was not "of Defendant's peer[s]."
10. Defendant cannot satisfy the first prong of Strickland as to any of these claims because he has failed to show that counsel's performance fell below an objective standard of reasonableness. Defendant does not make any showing that counsel's failure to provide transcripts is conduct that falls below an objective standard of reasonableness. Defendant's second claim also misses the mark because the Sixth Amendment guarantees effective assistance of counsel, not "that defense counsel recognize and raise every conceivable constitutional claim." As to Defendant's final in effective assistance of counsel claim, Defendant has not shown a "purposeful, deliberate exclusion of black people" from the jury. "Absent such a showing [the Court] may only conclude that the State used its peremptory challenges properly within its power." The Court concludes that absent a showing of any impropriety, an objection by Defendant's counsel regarding the State's exercise of peremptory challenges would likely have been futile. Consequently, Defendant has not shown that his counsel's representation fell below an objective standard of reasonableness.
Strickland, 466 U.S. at 688.
Johnson v. State, 312 A.2d 630, 631 (Del. 1973). See also State v. Ogle, 2004 WL 838642, at *3 (Del.Super.Ct. Apr. 7, 2004) ("The State constitution, the United States Constitution, and 10 Del C. § 4501, all guarantee that Defendant's jury will be selected at random from a fair cross section of the population. However, [a defendant] is not guaranteed a perfectly representative jury because the nature of random selection makes it inevitable that a jury may on occasion fail to represent the exact demographic make-up of the community. A violation of § 4501 cannot be supported by a solitary showing that African-Americans were underrepresented as a result of excusals granted for personal reasons or for cause[.]"). See also Riley v. State, 496 A.2d 997, 1008 (Del. 1985) ("Simply proving a substantial reduction in blacks within the venire as a result of excusals granted by the Court for personal reasons, or for cause, clearly does not satisfy the three-prong showing of [ Duren v. Missouri, 439 U.S. 357, 364 (1979)].").
11. Assuming arguendo that Defendant's counsel's performance did not meet an objective standard of reasonableness, Defendant has failed to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Nowhere in the motion sub judice does Defendant identify the "right issues" that, if raised on appeal, would have afforded Defendant "a better chance." Furthermore, Defendant only proffers a conclusory allegation that his counsel was ineffective for failing to object to the exclusion of a black juror. Defendant has neither made substantiated and specific allegations of actual prejudice, nor has he established "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Accordingly, Defendant's grounds for relief premised on ineffective assistance of counsel do not amount to a "colorable claim" under Rule 61(i)(5). As to these claims, Defendant's second motion for postconviction relief is procedurally barred pursuant to Rule 61.
Strickland, 466 U.S. at 694.
See D.I. 55.
See supra note 34.
B. Prosecutorial Misconduct
12. Defendant's fourth ground for relief alleges "prosecutorial misconduct" because the prosecutor allowed a witness to give testimony during the prosecutor's direct examination concerning Defendant's criminal history that the Court previously excluded under D.R.E. 404(b). Defendant claims the "[p]rosecutor allow[ed] State's witness to speak out on defendant's criminal history after being told by Trial Judge [that this evidence was inadmissible]." Defendant claims that the jury was influenced by this testimony and a mistrial should have been granted as requested by Defendant's counsel. Defendant also accuses the State's witness of committing perjury.
See D.I. 55. In particular, Defendant states "Prosecutor allow States witness to speak out on defendant criminal history after being told by Trial Judge. Raises issues prejudice jury should have been a mistrial on bad acts conduct like defendant lawyer Requested. . . .State witness repeatly [sic] lied on the Stand under oath which Results in Purjurie [sic] which impeachment of States Witness testimony is at hand[.]" See also Tr. 8:18-23; 9:1-18 (June 23, 2005) (excluding evidence of Defendant's prior bad acts from being introduced at trial); Tr. 84: 15-23; 85: 1-8:
Q: I'm going to begin with that second interview . . . you remarked that you didn't buy the gun for [Defendant], that you really don't go into the store with the intent to purchase a gun . . . you started to remark something about `Well, I cant be honest in the situation. I'm just going to get myself in trouble.' What did you mean by that statement? A: At that point, I was realizing that I had committed a serious crime and that by admitting that I purchased a gun for [Defendant] with a criminal record[.]
13. The Supreme Court of Delaware "has set forth a three-prong test to determine whether [a particular act amounts to] prosecutorial misconduct: (1) the centrality of the error to the case; (2) the closeness of the case; and (3) the steps taken by the court to mitigate the results of the error." In Paskins v. State, the defendant claimed prosecutorial misconduct when "the witness utter[ed] an unanticipated response to the State's question." The Supreme Court found "that any prejudicial harm the question may have created . . . was mitigated by the immediate curative instruction given by the court[.]" In the present case, the State's question was clearly intended to inquire why a witness gave a particular response when interviewed by an investigator — the question made no reference (explicit or implicit) to the defendant's criminal record. In response, the witness testified that she responded as she did to the investigator's question after she realized that she had purchased a gun for an individual with a criminal record. Defense counsel objected and moved for a mistrial. At side bar, the Court denied defense counsel's motion and the parties agreed on an appropriate curative instruction. The Court concludes that even if the witness' unanticipated response could be characterized as prosecutorial misconduct, pursuant to Paskins, the curative instruction sufficiently mitigated any potential prejudicial effect.
Paskins v. State, 1995 WL 120665, at *2 (Del. Mar. 15, 1995). See also Skinner v. State, 575 A.2d 1108, 1126 (Del. 1990) (citing Hughes v. State, 437 A.2d 559, 571 (Del. 1981) ("The decisive factors are the closeness of the case, the centrality of the issue affected by the (alleged) error, and the steps taken to mitigate the effects of the error.")).
Paskins, 1995 WL 120665, at *2 ("The State's question was to ascertain whether the witness had knowledge of defendant being arrested for the present robbery. The witness testified to a previous criminal incident involving defendant which previously had not been mentioned. Defense counsel immediately objected and the trial court gave a curative instruction to the jury.").
Id. (citing Diaz v. State, 508 A.2d 861, 866-67 (Del. 1986)).
See Tr. 84:14-23; 85:1-6.
See Tr. 85:7 — 90: 17 (reflecting the agreement of both parties on the court's curative instruction).
See Cruz v. State, 1993 WL 227080, at *7 (Del. June 4, 1993) (finding that an error by the prosecutor was "promptly and effectively mitigated by the trial court's immediate curative instruction."). See also Diaz, 508 A.2d at 866-67 ("[O]nly prosecutorial remarks that prejudicially affect substantial rights of the accused require reversal. . . .Even when prejudicial error is committed, it will usually be cured by the trial judge's instruction to the jury to disregard the remarks.") (citing Edwards v. State, 320 A.2d 701, 703 (Del. 1974) ("And even where error is committed, ordinarily it will be cured by the trial judge's striking of the offending testimony and admonition to the jury to disregard it.")).
14. Defendant also alleges, "State witness repeatly [sic] lied on the stand under oath which results in purjurie [sic] which impeachment of State's witness is at hand." A wholly unsubstantiated conclusory allegation of perjury will not be addressed on the merits. Defendant's fourth ground for relief premised on prosecutorial misconduct is, therefore, procedurally barred under Rule 61.
See State v. Reed, 2005 WL 2615630, at *5 (Del.Super.Ct. Oct. 5, 2005) (dismissing conclusory allegation of perjury "without further discussion of the merits or any procedural bar.").
C. Judicial Misconduct
15. Defendant claims this Court engaged in "Judicial Misconduct" because the Court gave a curative instruction in response to the testimony offered by the State's witness concerning Defendant's criminal history. Defendant alleges that the "court admits wrong doing" and the "trial judge trys [sic] to cover up bad acts by theatrical impact which only leads jurys [sic] on more lies." Essentially, Defendant alleges that this Court abused its discretion by instructing the jury to disregard the prior testimony instead of declaring a mistrial, and further alleges that he was prejudiced by the testimony and subsequent curative instruction. As a preliminary matter, Defendant's reliance upon the trial transcript to suggest that the Court somehow acknowledged error is misplaced. While Defendant correctly
See Id. In particular, Defendant states "Ground five: Judicial Misconduct (1) In Supporting tainted fuits [sic] of the case. Trial Judge admits to bad acts of prosecutor and witness attempts to cover up bad acts by Prosecutor witness. Which damage was already done. . . .(2) Trial Judge trys to cover up bad acts by Theatrical impact which only leads Jurys [sic] on more lies. . . . Ground six: Judicial Misconduct — Trial Judge admit wrong doing. . . .Damage is Done to defendant there was know [sic] having a fair trial . . . The Court . . . try to cover up bad acts of prosecutor witness which taints the jury on perjudice [sic] . . . the Court . . . admits of bad acts and try for cover up by theatrical impact . . . Court admits wrong doing."
cites to the portions of the record where his counsel objected to the testimony concerning Defendant's prior bad acts, and where the court and the parties discussed the appropriate curative instruction, there is simply no portion of the record where the Court conceded that it had committed a legal error.
See Tr. 87:21-23; 88:1-15; 89:21-23.
16. The Supreme Court of Delaware has "consistently held that even when prejudicial evidence is admitted, its prompt excision followed by a cautionary instruction will usually preclude a finding of reversible error." A curative instruction that provides an "adequate, practical, and meaningful alternative to granting a mistrial" is within the trial judge's discretion. The Court must
Smith, 913 A.2d at 1221 (citing Ashley v. State, 798 A.2d 1019, 1022 n. 15 (Del. 2002) ("[S]tating that in certain cases "a cautionary instruction is a `meaningful and practical' alternative obviating the need for a mistrial.")).
presume that the jury followed the trial court's instruction. This Court did not abuse its discretion when it offered the curative instruction or when it denied defense counsel's motion for a mistrial. By failing ever to show that the court abused its discretion by instructing the jury to disregard the testimony offered by the State's witness, the D efendant has fallen well short of making a "colorable claim" of a constitutional deprivation under Rule 61(i)(5). Defendant's final two grounds for relief are, therefore, procedurally barred.
See Paskins, 1995 WL 120665, at *2 (finding no abuse of discretion after trial judge gave curative instruction after witness' unanticipated testimony concerning a previous criminal incident in response to the State's question).
17. Based on the foregoing, Defendant's second motion for postconviction relief is DENIED. IT IS SO ORDERED