IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY. Submitted: August 11, 2008 Decided: September 3, 2008

Transcription

1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE, ) ) v. ) I.D. No ) MICHAEL JONES, ) ) Defendant. ) Submitted: August 11, 2008 Decided: September 3, 2008 UPON CONSIDERATION OF DEFENDANT S FIRST PRO SE MOTION FOR POSTCONVICTION RELIEF DENIED Michael Jones, Pro Se. Kevin J. O Connell, Esquire, Wilmington, Delaware. Jerome M. Capone, Esquire, Wilmington, Delaware. ABLEMAN, JUDGE

2 I. Introduction Before the Court is Defendant Michael Jones ( Jones ) First Motion for Postconviction Relief following his conviction on January 27, 2005 of three counts of Murder in the First Degree, one count of Robbery in the First Degree, one count of Arson in the Second Degree, and related weapons and conspiracy charges. On the murder charges, Jones was sentenced to three life sentences without the possibility of parole or any other sentence reduction. The Supreme Court ultimately affirmed his convictions and sentences. 1 In his motion, Jones raises six substantive grounds for relief. Specifically, he argues that: (1) his arrest was illegal; (2) his right to a speedy trial was violated; (3) his Brady rights were violated; 2 (4) the trial judge abused her discretion with various rulings; (5) the prosecutor engaged in misconduct; and (6) his counsel was ineffective. Jones asks that his convictions be vacated, that his sentences be overturned, and that he receive a new trial with new counsel. Jones, who has filed the instant motion pro se also asks that counsel be appointed to assist him and that an evidentiary hearing be held to address the merits of his motion. 1 Jones v. State, 940 A.2d 1 (Del. 2007). 2 Brady v. Maryland, 373 U.S. 83 (1963). 2

3 The Court has considered the lengthy motion 3 filed by Jones, as well as counsels responses. After reviewing the record, the Court concludes that all of Jones claims are either procedurally barred or lack merit. For the reasons set forth more fully hereafter, Defendant s motion for postconviction relief is denied. II. Statement of Facts A. Factual Background Michael Jones, also known as Gotti, and Darrel Page ( Page ), also known as Quazzi, were members of a drug ring in Wilmington Delaware. 4 Cedric Reinford ( Reinford ), also known as Dreds, led the operation. On the evening of November 20, 1999, Jones, Page, and Reinford were together in Reinford s car in Wilmington. At that time, Jones, born March 14, 1982, was 17 years, 8 months old. The evidence at trial established that Jones killed Reinford by shooting him three times in the head while the three men were in Reinford s car. Page and Jones then covered Reinford and his car with gasoline and set it afire. Afterwards, both Jones and Page went to Reinford s house to steal drug money. There, Jones shot and killed Reinford s fiancée, Maneeka Plant ( Plant ), while she was 3 Jones motion for postconviction relief was one-hundred-and-twelve pages long, not including the supplements and amendments he later added. 4 These facts are taken from the Supreme Court s decision affirming Jones convictions and sentences. See Jones v. State, 940 A.2d 1 (Del. 2007). 3

4 in bed with her six-week old infant. Jones then shot Reinford s brother, Muhammad Reinford ( Muhammad ), in the face. Muhammad survived and called the police at 3:20 a.m. on November 21, While in the hospital on that date, Muhammad identified Page and Jones from a photo lineup and described what had happened to the police. The subsequent investigation led the police to question Kim Still ( Still ), Page s girlfriend. At the Wilmington Police Station, Still told the police that Page planned to kill Reinford and recruited Jones to help him. She also explained the circumstances surrounding her decision to drive to Philadelphia to pick up a car borrowed by Page and Jones and her meeting with the two men afterwards, as well as Page s statements to Still after police contacted her by telephone and told her to return to Wilmington for questioning. In all, Still s interrogation lasted sixteen hours. The last five hours of her interrogation were videotaped. Police arrested Page on November 3, A grand jury then indicted Page and Jones on January 29, Jones was arrested on September 11, 2001 in North Carolina and extradited to Delaware on October 29, The Court severed Page s trial from Jones trial because Page s defense was that Jones forced him to commit the murders at gunpoint. Page, 934 A.2d at 895 n.9. Ultimately, on June 12, 2003 Page was convicted of three counts of Murder First Degree, one count of Attempted Murder First Degree and related weapons and conspiracy charges. Id. at

5 B. The Guilt Phase Jones trial was originally scheduled to begin on November 12, At the proof positive hearing on January 25, 2002, the State notified the Court and Jones that it intended to seek the death penalty. After a courtordered stay of all capital murder cases, Jones trial was rescheduled for November 24, Shortly before trial, Jones filed a motion to obtain new counsel, which was granted on November 17, In April 2004, Jones sought to preclude the State from seeking the death penalty because he was under the age of eighteen at the time of the murders. On August 31, 2004, the trial judge denied this motion based on the doctrine of stare decisis and the United States Supreme Court s precedent at the time. 7 Jones trial then began on January 11, As explained infra, the stay was precipitated by the decision from the United States Supreme Court in Ring v. Arizona, 536 U.S. 584 (2002) and its effect on all capital cases. 7 The Delaware Supreme Court explained: The trial judge expressed willingness to delay the trial until after a decision in Roper [State ex rel. Simmons v. Roper, 112 S.W.3d 397 (Mo. 2003)] so that the State could avoid the expense of preparing for a penalty phase that might later prove to be meaningless, and so Jones could avoid being tried by a death qualified jury. State v. Jones, 2005 WL , at *2 (Del. Super.). Through his counsel, Jones rejected this option. Id. On March 1, 2005, the U.S. Supreme Court found the juvenile death penalty irreconcilable with its evolving standards of decency interpretation of the Eighth Amendment and thereby deemed it unconstitutional. Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). 5

6 During jury selection, the State used six of its eight peremptory challenges to remove members of minority groups from the jury. In response to objections by Jones, the prosecutor explained his reasons for the challenges, which the trial judge found to be race neutral. 8 On January 27, 2005, the jury found Jones guilty of three counts of Murder in the First Degree, one count of Robbery in the First Degree, one count of Arson in the Second Degree, and other related weapons and conspiracy charges. C. The Penalty Phase Following the jury s verdicts of guilty, the Court began the penalty phase to determine whether Jones should be sentenced to life imprisonment or death. The jury recommended the death penalty for Jones by a vote of eleven-to-one on two of the Murder First Degree counts and ten-to-two on the third Murder First Degree count. After the penalty phase, but prior to sentencing, the United States Supreme Court decided Roper v. Simmons, 9 wherein it held that imposition of death penalty for juveniles was unconstitutional. Jones was thereby ineligible for the death penalty due to his young age at the time he committed the crimes. After Simmons was decided, but before sentencing, counsel for Jones filed motions for the trial Jones, 940 A.2d at 6 n.4. 8 State v. Jones, 2007 WL (Del. Super. Ct. Jul. 3, 2007) U.S. 551 (2005). 6

7 judge s recusal and for a new trial. In a lengthy opinion, the trial judge denied these motions. Jones was later sentenced to life imprisonment for his murder convictions. 10 D. Jones Appeal Jones filed a timely appeal of his sentences and convictions to the Delaware Supreme Court. In that appeal, he raised eight points of error. One of his arguments, that the prosecutor improperly exercised peremptory challenges to strike jury panel members, resulted in the Delaware Supreme Court remanding the case to the Superior Court to evaluate all of the evidence and determine whether Jones met the burden of persuasion mandated by Batson v. Kentucky. 11 On remand, the Superior Court conducted an evidentiary hearing to determine whether the prosecutor violated Batson. After conducting that hearing, the Court concluded that Jones had failed to meet his burden of establishing that the prosecutor exercised his peremptory challenges in a racially discriminatory manner. 12 As a result, the judge found that Batson had not been violated and returned the case to the Delaware Supreme Court. 10 State v. Jones, 2005 WL , at *5 (Del. Super. Ct. Apr. 10, 2005), reargument denied, 2005 WL (Del. Super. Ct. Apr. 15, 2005). 11 Jones v. State, 938 A.2d 626 (Del. 2007) (citing Batson v. Kentucky, 476 U.S. 79 (1986)). 12 State v. Jones, 2007 WL (Del. Super. Ct. Jul. 3, 2007). 7

8 On appeal, the Delaware Supreme Court again considered Jones arguments. The Delaware Supreme Court concluded that: (1) the prosecutor did not improperly exercise his peremptory challenges in a racially discriminatory manner in violation of Batson v. Kentucky; 13 (2) the trial judge did not abuse her discretion when she admitted statements made by Still to police under 11 Del. C ( 3507 ) regarding Page s intent to kill Reinford and Page s comments that Jones was da man for killing Reinford; 14 (3) the admission of the 3507 statements did not violate Jones Sixth Amendment right to confront witnesses; 15 (4) the trial judge did not abuse her discretion when she allowed the State to introduce the actual videotaped testimony of Still into evidence; 16 (5) the trial judge did not abuse her discretion when she declined to sequester Muhammad Reinford and Still during the police officer s testimony about Still s statements; 17 (6) the trial judge did not abuse her discretion when she limited questioning of a 13 Jones v. State, 940 A.2d 1, 9 (Del. 2007). 14 Id. at Id. at The Sixth Amendment of the U.S. Constitution states, in pertinent part, [i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him. U.S. CONST. amend. VI. 16 Id. at Id. at 15. 8

9 police officer regarding bias of Muhammad Reinford because it was not relevant to any bias of the officer; 18 (7) the trial judge did not abuse her discretion when she initially limited cross-examination of Yolanda Lum over a certain subject matter because Jones ultimately had the opportunity to cross-examine her about the subject matter without limitation; 19 (8) the trial judge did not abuse her discretion when she admitted photographs of Reinford s car and charred body; 20 (9) the trial judge did not abuse her discretion, nor was there any error, when she denied Jones motion to recuse; 21 and (10) the trial judge did not abuse her discretion when she denied Jones motion for a new trial. 22 Accordingly, the Delaware Supreme affirmed Jones convictions and upheld Jones three sentences of life imprisonment as well as those on the remaining convictions. III. Defendant s Contentions In his Motion for Postconviction Relief, Jones raises six arguments, each of which will be discussed separately below. A. Illegal Arrest 18 Id. at Jones, 940 A.2d at Id. 21 Id. at Id. at

10 Jones first claim is that his arrest was illegal. He argues that the affidavit which supported the warrant for his arrest contained numerous intentionally and willfully false statements by the police. He claims that the police fabricated events concerning an alleged photo line-up and statements made by Reinford while hospitalized after the shooting. For example, according to Muhammad s medical report on November 21, 1999, he was intubated. As a result, Jones claims that it would have been physically impossible for him to give a statement to the Wilmington Police, and the affidavit for probable cause is therefore erroneous in that it states that Muhammad selected Jones photograph from a photo line-up and identified Jones as the shooter. 23 Jones requests a Franks hearing to address these claims. 24 Jones also argues that Muhammad Reinford s identification of him was insufficient to establish probable cause. In support of this claim, he contends that Muhammad admitted that he had smoked marijuana just before he identified Jones in a photo line-up. Moreover, Jones seizes on the 23 Docket 225, Ex. A (Affidavit of Probable Cause). 24 In Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme Court held that a defendant may be entitled to hearing where there are sufficient allegations that the affidavit for probable cause supporting a warrant contained intentionally false statements or statements made with a reckless disregard for the truth. Id. at

11 fact that Muhammad did not recognize him before he was shot in the face and that the house was dark at the time of the shooting. In his next argument, Jones points to Still s references to two other possible suspects named Shane and O and submits that these create reasonable doubt as to whether Jones in fact committed the murders. He also argues that probable cause to arrest him could not have been based upon statements Still gave to police because she assumed Jones was associated with Page. Jones next identifies inconsistencies in statements made by Detective Cunningham, who signed the Affidavit of Probable Cause. For example, Detective Cunningham reported to Captain Andrew J. Brady of the Wilmington Fire Department that Muhammad told him that Page was the shooter at the time the police found Reinford s burnt body. 25 Later at trial, however, Cunningham testified that Jones was the shooter. He suggests that these inconsistencies amount to perjury, requiring reversal. B. Speedy Trial Violation Jones second contention in this postconviction motion is that his right to a speedy trial guaranteed by the Sixth Amendment to the United States 25 Docket 225 (Defendant s Motion for Postconviction Relief), Ex. D (Wilmington Fire Department Case Summary). 11

12 Constitution and the Delaware Constitution was violated. 26 He argues that the delay of forty months between his arrest and trial is presumptively prejudicial. He submits that the circumstances leading to the delays -- (1) the temporary stay of all capital cases during the pendency of his trial; (2) the trial judge s refusal to appoint new counsel for Jones; (3) the trial judge s denial of his motions for a speedy trial; (4) his counsel s attempt to withdraw from representing him after the Chief of Legal Services called him a murderer ; (5) the appointment of new counsel on Jones behalf; and (6) numerous continuances by the Court and the prosecution -- all impaired his defense. Moreover, he asserts that his confinement during this time was oppressive, as he was illegally housed in a maximum-security prison and suffered mentally as a result. He argues that the delay further impaired his ability to subpoena Desiree Harper as an alibi witness. Relying on Barker v. Wingo, 27 he contends that his indictment must be dismissed. C. Brady Violation Jones third basis for relief is that his convictions violated his due process rights since the State purposely suppressed evidence favorable to 26 See U.S. CONST. amend. VI ( In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,.... ); Del. Const. art. I, 7 ( In all criminal prosecutions, the accused hath a right to... a speedy and public trial by an impartial jury;.... ) U.S. 514 (1972). 12

13 him, in violation of Brady v. Maryland. 28 Specifically, he claims that the State videotaped only five hours of Still s testimony, even though she was interrogated for sixteen hours. He also notes that, at Page s trial, Still testified that she was threatened by police during her interview. 29 In essence, Jones maintains that Still made a false confession implicating him. Since the videotaped interview of Still in evidence at trial did not include any dialogue showing any threatening behavior by the police, Jones submits that the State must have suppressed evidence favorable to him. D. Abuse of Discretion As a fourth basis for relief, Jones submits that the trial judge abused her discretion in various ways. First, he contends that the trial judge abused her discretion under D.R.E. 403(b) when she admitted certain statements by Still: (1) statements Page allegedly made to Still while planning the crimes; (2) statements Page made after the murders to Still while Still assisted both his escape; and (3) statements that Still was afraid of Page. He also argues that it was an abuse of discretion for the trial judge to find that Still voluntarily gave her statement to the police, given that she testified at Page s trial that she was threatened U.S. 83 (1963). 29 Docket 225, Ex. E (State v. Page Tr. Trans.), at

14 Jones next argues that it was an abuse of discretion for the Court to have precluded Jones from cross-examining Detective Gary Taylor about the circumstances of his out-of-court interview with Muhammad, and it was error to permit Muhammad to remain in the courtroom during Taylor s testimony. This inquiry was relevant, Jones argues, because he was thereby prevented from determining whether Muhammad was offered a plea agreement to testify against Jones in exchange for the State agreeing not to charge him with a criminal offense. Jones contends that the trial judge further abused her discretion when she denied Jones request to admit transcripts of the videotaped testimony and then reversed her decision and admitted them with a limiting instruction. Similarly, he maintains that she abused her discretion when she limited the cross-examination of Yolanda Lum by disallowing questioning about any pending charges against her. E. Prosecutorial Misconduct Jones next argues that his convictions should be reversed because of prosecutorial misconduct. He argues that prosecutors knowingly presented the perjured testimony of Kim Still, Lynn Raikes, Muhammad Reinford, Yolanda Lum, and Geralyn Holmes. Jones bases this argument on the inconsistencies between testimony at Page s trial, which occurred before 14

15 Jones trial, and testimony offered at Jones trial. He gives as an example that, although Still testified that Page had Reinford s brown paper bag of drug money at Page s trial when she met Page and Jones in Philadelphia, she later testified at Jones trial that Jones had possession of Reinford s plastic drug money bag. 30 Since these are instances where Still s testimony was not identical to her testimony in Page s trial, Jones contends that Still was coerced to testify against him. He notes that the prosecutors in his trial were the same prosecutors in both trials so that they knew of the perjury. Jones relies upon Napue v. People of the State of Illinois 31 which he claims, established that the prosecutors decision to let the witnesses testify inconsistently demonstrates prosecutorial misconduct. Jones further contends that the prosecutors engaged in misconduct by misleading the jury in their closing arguments and stating facts that prosecutors knew were false. Specifically, because Page was only found guilty of attempted robbery and not robbery, he argues that the prosecutors statement that Jones and Page engaged in a robbery was false. He also points to other facts mentioned by the prosecutor that, while inferred from 30 Id. at U.S. 264 (1959). 15

16 testimony given, were not actually offered at trial. 32 He contends that the prosecutors argument that memories fade when discussing the inconsistencies in testimony, especially that of Muhammad, demonstrates a malicious intent... to cover-up perjured testimony. 33 Since the prosecutors offered theories to establish Jones guilt without offering evidence for each inference, Jones contends that the prosecutors engaged in misconduct in violation of Hughes v. State. 34 F. Ineffective Assistance of Counsel In his final, and only argument that could not have been raised in his direct appeal, Jones contends that he received ineffective assistance of counsel. Specifically, he submits that his attorneys counsel was deficient in the following respects: (1) counsels failure to challenge his arrest warrant; (2) their failure to object to the voluntariness of Still s 3507 statement; (3) their failure to object to the perjured testimony offered at trial by various witnesses; (4) their failure to object to the testimony of Geralyn Holmes on the grounds of relevancy and prejudice; (5) their failure to call Jones alibi witness, Desiree Harper; (6) their failure to call doctors that cared for 32 For example, Jones complains that the prosecutor argued that Jones fired three bullets in Reinford s body, even though no witness testified to observing him fire the gun. 33 Docket 225, at A.2d 559 (Del. 1981). 16

17 Muhammad while he was in the hospital; (7) their failure to interview Still and Muhammad; (8) their failure to request that the trial judge recuse herself; 35 and (9) their failure to raise his claim of a speedy trial violation in his direct appeal. 36 According to Jones, these errors caused him prejudice under Strickland v. Washington. 37 He also submits that his attorneys decision to refrain from challenging the warrant was objectively unreasonable since Jones had expressly asked counsel to object. IV. Counsels Responses In response, Jones attorneys deny all of Jones allegations. 38 Specifically, in their affidavits, they put forth the following explanations: (1) There was no basis to challenge Jones arrest warrant because the State had sufficient evidence to proceed with a capital case against him, as 35 In his motion, Jones claimed that he received ineffective assistance of counsel because his attorneys failed to request that the trial judge recuse herself. Contrary to Jones claim, Jones counsel: (1) filed a motion asking the trial judge to recuse herself and seeking a new trial; (2) filed a motion for reargument; and (3) sought reversal of Jones convictions on appeal on the grounds that the trial judge denied Jones request for recusal and for a new trial. See State v. Jones, 2005 WL (Del. Super. Ct. Apr. 10, 2005) (denying defendant s motion to recuse); State v. Jones, 2005 WL (Del. Super. Ct. Apr. 15, 2005) (denying defendant s motion for reargument); Jones v. State, 940 A.2d 1, (Del. 2007). Because Jones allegation is factually incorrect, the Court did not request counsel to respond to this allegation and will not address it herein. 36 Jones raised this final claim in an amendment to his motion. See Docket U.S. 668 (1984). 38 Jones attorneys, Jerry M. Capone, Esq., and Kevin J. O Connell, Esq., filed separate affidavits in response to Jones allegations. The Court will address both affidavits together and refer to the attorneys collectively as counsel. 17

18 determined by the Grand Jury and by the Court following a proof positive hearing. Moreover, counsel state that it was physically possible for Muhammad to have given the statements which were offered in the affidavit of probable cause as he did speak to the police from his hospital bed, which was videotaped and presented into evidence. Regarding their failure to file a suppression motion, counsel submit that there was no need to do so because police did not seize any evidence from Jones. They note that any inconsistencies in Muhammad s testimony were explained to the jury during trial. (2) Counsel made the strategic decision not to challenge the voluntariness of Still s 3507 statement because her live testimony was more damaging to her credibility since she kept changing her story. As a result, it was to Jones benefit to play Still s taped interview before the jury. Moreover, after reviewing her 3507 statement prior to trial, counsel believed that Still testified voluntarily and that playing the statement for the jury would aid in their cross-examination of her. Similarly, counsel could find no evidence that Still s will was overborne, despite mildly coercive tactics used to obtain Still s cooperation. Counsel note, however, that they did file a motion to exclude parts of her 3507 statement that they felt were unduly prejudicial. 18

19 (3) Counsel cross-examined each witness, including Geralyn Holmes, to the best of their ability. They note that they objected when they felt it was legally justified and strategically appropriate. Moreover, counsel point out that their duty as competent advocates was not to object on the basis of perjured testimony but to convince the jury that the testimony was unreliable and untrustworthy. (4) Counsel decided not to call Jones alibi witness because she was not credible. Since Jones was not arrested until long after his indictment, the witness he named was unable to offer any specific recollection of the events of November 21, In contrast, the witnesses for the State had their recollections memorialized or taped soon after the crimes. Counsel therefore determined that the alibi witness would only serve to prejudice Jones. (5) Defense attorneys subpoenaed Muhammad s medical records, which indicated that he was lucid and alert when questioned by police. Although counsel introduced portions of those records, which confirmed that Muhammad was taking medication during the interviews, they chose not to call any medical personnel because they believed that the witnesses would testify that Muhammad was credible, thereby bolstering, rather than impeaching, his testimony. 19

20 (6) Counsel did not object to certain statements made by the prosecutors in closing arguments because they were neither legally nor strategically justified in doing so. Counsel contend that the prosecutors made no improper inferences which would justify objection. (7) Although the defense attempted to interview Muhammad and Still, both were hostile to Jones. In support of these claims, counsel have provided billing statements demonstrating their efforts. 39 (8) Defense counsel recognized Jones speedy trial claim and, in fact, spent an extensive amount of time researching it. Ultimately, however, counsel decided to forego raising a speedy trial violation claim on appeal for two reasons: (1) much of the delay between Jones indictment and his trial was not the fault of the State, making any speedy trial claim likely to be unmeritorious; and (2) raising the claim would water down the meritorious arguments raised on appeal. V. Legal Standard Prior to addressing the substantive merits of any claim for postconviction relief, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule Docket 232 (Affidavit in Response to Defendant s Rule 61 Motion), Ex. 20

21 ( Rule 61 ). 40 If the procedural requirements of Rule 61 are not met, in order to protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim. 41 Rule 61(i) imposes four procedural imperatives: (1) the motion must be filed within one year of a final order of conviction; 42 (2) any basis for relief must have been asserted previously in any prior postconviction proceeding; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules unless the movant shows prejudice to his rights or cause for relief; and (4) any basis for relief must not have been formerly adjudicated in any proceeding. The bars to relief under (1), (2), and (3), however, 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 leading to the 40 Younger v. State, 580 A.2d 552, 554 (Del. 1990). See also Bailey v. State, 588 A.2d 1121, 1127 (Del. Super. Ct. 1991). 41 State v. Gattis, 1995 WL , at *2 (Del. Super. Ct. Dec. 28, 1995) (citing Younger, 580 A.2d at 554), aff d, 697 A.2d 1174 (Del. 1997), cert. denied, 522 U.S (1998). 42 If the final order of conviction occurred before July 1, 2005, the motion must be filed within three years. If the final order of conviction occurred on or after July 1, 2005, however, the motion must be filed within one year. See Super. Ct. Crim. R. 61(i)(1) (July 1, 2005) (amending Super. Ct. Crim. R. 61(i)(1) (May 1, 1996)). 21

22 judgment of conviction. 43 Moreover, the procedural bars of (2) and (4) may be overcome if reconsideration of the claim is warranted in the interest of justice. 44 VI. Analysis The Court first notes that Jones has timely filed his postconviction motion, 45 and since this is Jones first postconviction motion, none of his claims are repetitive and subject to dismissal on that basis. 46 The Court concludes, however, that many of Jones claims are procedurally barred under Rules 61(i)(3) and 61(i)(4), as explained infra. For the sake of clarity, the Court will address each of his arguments individually. A. Illegal Arrest Jones first claims that his arrest was illegal. This claim is procedurally barred by Rule 61(i)(3) because he did not raise this issue in his direct appeal to the Supreme Court. 47 Thus, the Court can only consider this 43 Super. Ct. Crim. R. 61(i)(5). 44 Id. R. 61(i)(4). 45 The Supreme Court mandate affirming Jones convictions and sentenced was issued January 3, Docket 220. Jones filed this motion on May 21, 2008, within one year of the time his convictions became final. See Super. Ct. Crim. R. 61(i)(1). 46 See Super. Ct. Crim. R. 61(i)(2). 47 Id. R. 61(i)(3). 22

23 claim if he has demonstrated a miscarriage of justice or that reconsideration is warranted in the interest of justice. Jones has failed to establish that a miscarriage of justice occurred or that this Court should reconsider these issues that he waived in the interest of justice. Not only did the Grand Jury conclude that there was sufficient evidence to charge Jones, but the Court reached the same conclusion following a proof positive hearing. Counsel also agreed that there was no basis to challenge the arrest warrant or the affidavit offered in support of the warrant because Muhammad physically could have, and in fact did, give a statement implicating Jones in the murders at the hospital. Notably, despite the possibility that Jones may not have been the murderer at the time the police submitted an affidavit of probable cause, the police were not required to know for sure that Jones was the murderer. They only needed sufficient information that would persuade a reasonable man that a crime has been, is being, or will be committed. 48 The Court also notes that Jones former counsel testified that there was no need for a Franks hearing. 49 Here, the 48 Tolson v. State, 900 A.2d 639, (Del. 2006) (citations omitted). 49 On September 26, 2003, the Court heard Jones motion to dismiss his attorney. At that hearing, the issue of whether a Franks hearing was needed arose. His attorney explicitly stated that he did not believe there was a basis to request a Franks hearing, even though the State had explicitly informed defense counsel to discuss the issue with Jones. See Docket 225, Ex. H (Hearing Tr. of Def. s Mot. to Dismiss Counsel, Sept. 26, 2003, at 15:4-19). 23

24 police had sufficient evidence to believe that Jones was the murderer, as confirmed by the grand jury and by the Court at the proof positive hearing. Jones claim of an illegal arrest is therefore unavailing. B. Speedy Trial Violation Jones second argument in this motion is that his right to a speedy trial was violated. Since Jones failed to raise this Constitutional issue on direct appeal, he is procedurally barred from raising it in this collateral proceeding. 50 Unless Jones can demonstrate cause or prejudice, the Court will not consider this claim. 51 In this case, Jones filed a motion to address his speedy trial claim during his incarceration before trial. He also informed his attorneys that he wanted the issue raised on his appeal. Counsel concluded that this claim was not likely to be meritorious, and made a strategic and legal decision not raise it on appeal. 52 Notwithstanding this tactic, since Jones has 50 Id. R. 61(i)(3); State v. Hassan-El, 2008 WL , at *3 (Del. Super. Ct. Jul. 31, 2008) ( Because the Defendant failed to raise these Constitutional issues on his direct appeal, they are procedurally barred and the Court need not address them unless cause and prejudice is shown by the Defendant. ). 51 Hassan-El, 2008 WL at *3 (citing Super. Ct. Crim. R. 61(i)(3)). 52 Although the Court will address Jones ineffective assistance of counsel claims infra, the Court briefly notes that the strategic decision to waive an argument on appeal that his attorneys felt lacked merit and to focus on other arguments does not per se establish ineffective assistance of counsel. Rather, it is the hallmark of a good attorney to refuse to submit unmeritorious claims on appeal and pursue those claims that, in good faith, the 24

25 demonstrated cause for why this claim was not raised, the Court will address this argument on the merits. In order to appreciate the Court s analysis, a timeline of this case is necessary. Jones was indicted on January 29, Because he fled Delaware, he was not arrested until September 11, At an office conference on November 21, 2001, the Court scheduled trial for November 12, On December 6, 2001, Jones then filed a motion to have a new attorney appointed on his behalf. The motion was denied on January 31, In the meantime, the United States Supreme Court rendered its decision in Ring v. Arizona, 53 which had a direct effect on Delaware s death penalty statute. As a result, on June 24, 2002, the Delaware General attorney believes have merit. As explained in State v. Tatum, 2008 WL , at *2 (Del. Super. Ct. Jun. 27, 2008): Simply because the Defendant does not like counsel s strategy or trial tactics does not render counsel s conduct unreasonable.... Counsel s conduct certainly qualifies as reasonable, especially in light of his duty to the Court not to file frivolous motions. Litigation decisions of this nature are within the province of counsel to decide and a defendant s disagreement with that decision does not provide a basis for the Court to second guess counsel U.S. 584 (2002). 25

26 Assembly amended the law defining the procedure for capital cases, and the legislation was signed by the Governor on July 22, These significant developments in first degree murder jurisprudence created new legal issues, requiring the Superior Court to certify sixteen questions of law to the Delaware Supreme Court. 55 The Superior Court then immediately issued a temporary stay of all capital cases, effective September 10, 2002, pending the Supreme Court s decision on the certified questions. 56 Once the Delaware Supreme Court issued a decision in Brice v. State, 57 wherein it resolved the certified questions, the Superior Court lifted the temporary stay of all capital cases on January 27, During this time period, Jones had asserted his right to a speedy trial in a motion on October 22, 2002, which was denied by the Court on January 7, 2003 due to the pending stay. Trial in this case was scheduled for May 19, 2003, after the stay was lifted. The Court then held a hearing on Jones motion to dismiss his attorney and appoint new counsel. The motion was denied. At the State s request, trial had to be rescheduled again for November 24, 2003 because Del. Laws ch. 423 (2002). 55 See Brice v. State, 815 A.2d 314 (Del. 2003). 56 Page, 934 A.2d at A.2d 314 (Del. 2003). 26

27 the prosecutor was to be on maternity leave. On November 12, 2003, however, Jones requested a continuance because of an overheard statement made by the Chief of Legal Services to the effect that Jones was a murderer. 58 Of particular note, the Court informed Jones counsel that his request for a new attorney would mean that he would be waiving his speedy trial right: The Court: The point is, I want him to know that he doesn t want you as his attorneys, now, that s going to delay this for him because, I mean, what that does is that basically absolutely forces me to continue this case. There s no lawyer in the world that I would require to be prepared [with one week s notice].... So, he wants a speedy trial and he wants new lawyers. He s always wanted both.... But if that s the case, he s going to have to understand that he s waiving his speedy-trial rights. Otherwise, he s going to trial with you folks The Court: But I will let you [Jones] know that if if I have to let them [counsel] withdraw, I have to bounce the entire Public Defender s Office out of this, which means I ve got to appoint someone else. And there is no lawyer that s worth his or her salt who would be willing to take a capital murder case.... If I have to appoint new counsel, I would have to give I will have to continue this case for another date. There is no way we can go to trial on November 24. So, you need to understand that you can t have your speedy trial date and insist on one 11/24, 2003, as the date of jury selection, and, also, vehemently oppose having these attorneys represent you. Do you understand that? 58 Id., Ex. H (Hearing Tr. of Office Conference, Nov. 12, 2003). 59 Id., Ex. H, at 5:10-6:14. 27

28 Jones: Yeah, I understand. 60 After agreeing to appoint Jones new counsel, the Court further explained its basis for continuing the case: The Court: But here are my concerns, Mr. Jones, so you understand. I know that you want to get his over with, and I know that you have asserted all along your speedy-trial rights. I cannot appoint a new attorney, as I indicated before, for you and expect that person to give effective assistance of counsel between in [sic] you and Thanksgiving The Court: I went through several reasons. One was the holidays and the other was that now, of course, your counsel have been granted leave to withdraw. But they were not prepared to go forward on the 24 th. And the reason they were not prepared to go forward on the 24 th was because you were not cooperating and you were forcing them to jump through hoops in order to find people that would testify favorably for you in a mitigation case. Now, that s not fair to them. But I was going to have give them a continuance under any circumstances. 62 The Court then appointed Kevin J. O Connell, Esquire, and Jerome M. Capone, Esquire (collectively, counsel ), on behalf of Jones. On June 22, 2004, the Court held an office conference with counsel. At that time, the Court expressed a willingness to defer decision on whether a death-qualified 60 Id., Ex. H, at 26:8-27:2. 61 Id.. Ex. H, at 36: Id., Ex. H, at 40:

29 jury was required in this case, as a result of the then pending United States Supreme Court case of Roper v. Simmons. 63 That decision would address the constitutionality of the juvenile death penalty. 64 Counsel chose to move forward and urged the Court to proceed on Jones motion to preclude the death penalty, noting that he would waive any speedy trial violation claim. 65 On August 31, 2004, this Court upheld the juvenile death penalty on stare decisis grounds. 66 Jones trial finally began on January 11, At that time, a decision in the Simmons case had not yet been filed by the U.S. Supreme Court. The Court evaluates a claim of a violation of a defendant s Sixth Amendment right to a speedy trial under the four-factor test established by the United States Supreme Court in Barker v. Wingo. 67 The right to a speedy trial attaches once a defendant is accused of a crime, through his arrest or indictment, whichever occurs first. 68 The four factors are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant s assertion U.S. 551 (2005). 64 Jones was seventeen years of age at the time of the murders. 65 See Docket 225, Ex. H (Hearing Tr. of Office Conference, Jun. 22, 2004, at 12). 66 See State v. Jones, 2005 WL (Del. Super. Ct. Apr. 10, 2005) U.S. 514 (1972). The Delaware Supreme Court adopted the Barker analysis in Johnson v. State, 305 A.2d 622, 623 (Del. 1973). 68 Middlebrook v. State, 802 A.2d 268, 273 (Del. 2002). 29

30 of his right to a speedy trial; and (4) the prejudice resulting to the defendant from the delay. 69 Each of these factors will be considered below. (1) The Length of the Delay Under this factor, no specific delay is automatically prejudicial. The Court must therefore analyze the particular circumstances of each case. 70 In this case, Jones was indicted on January 29, 2001 and arrested on September 11, He was not tried until January 11, 2005, nearly four years after his indictment and nearly three-and-a-half years after his arrest. While most capital cases should be tried within one year of indictment, the courts are given flexibility in the interest of justice. 71 Nonetheless, because the period from Jones arrest to his trial exceeds the general one-year rule for holding trials in Superior Court, 72 the Court will consider the other Barker factors Barker, 407 U.S. at Dabney v. State, A.2d, 2008 WL , at *5 (Del. May 23, 2008) (citing Barker, 407 U.S. at ). 71 Administrative Directive No. 131 states, in pertinent part: All [capital] cases must be tried and/or otherwise adjudicated within one year from the date of the indictment.... Because of their complexity, capital cases occasionally may present unique problems that preclude a trial or other disposition within the one-year period. A judge therefore may depart from those guidelines when the interests of justice require. 72 See Dabney, 2008 WL at *6 (discussing Supreme Court of Delaware Administrative Directive 130 (July 11, 2001)). 30

31 (2) The Reasons for the Delay The second factor to consider -- the reason for delay -- weighs against Jones. The nine-month period between Jones indictment and arrest was entirely his own doing, as he fled from Delaware. Although trial was initially scheduled for November 12, 2002, it was Jones who sought to have new counsel appointed because of a disagreement with his public defender. Thereafter, all capital cases, including Jones case, were stayed from September 10, 2002 until January 31, This delay was not attributable to any fault of the State, the Court, or Jones. The State then sought to continue the trial to November 24, 2003 because the prosecutor was going out on maternity leave. Although the January 31, 2003 to November 24, 2003 delay was attributable to the State, Jones sought his own continuance during that time due to inappropriate comments from the Chief of Legal Services. The Court granted Jones request to appoint new counsel, but made it clear to Jones that that would necessitate continuing the trial in order to give new counsel adequate time to prepare. The Court explained to Jones that he could not have both a new 73 Id. at *6 ( Because the trial delay in this case exceeded one year between arrest and incarceration to trial, we are compelled to find that the length of delay necessitates our consideration of the other Barker factors. ). 31

32 lawyer and an earlier trial date, and he in turn expressed his understanding of the dilemma. Substitute counsel recognized the delay between his arrest and trial but made the deliberate choice to waive any speedy trial argument in order to address the death-qualified jury issue. While the Court recognizes that counsel could not waive the issue for Jones without his consent, the record is clear that counsel repeatedly made the strategic decisions to seek continuances in order to gather witnesses, conduct more research, and become thoroughly prepared to try Jones case on January 11, Although the delay in this case was considerable, it was a result of Jones request for new counsel and the need to have his attorneys adequately prepare. The State informed the Court that it was ready to proceed to trial on November 24, Although some of the delays are attributable to the State, the bulk of the time before trial resulted from Jones request for new counsel, the temporary stay of all capital cases, and the Court s desire to 74 At the hearing to address Jones Motion to Appoint New Counsel, the prosecutor informed the Court: Prosecutor: I just want the record to reflect that the State is prepared to go to trial to pick a jury on the 24 th and start the case in December, knowing full well the findings your Honor has already made. The Court: All right. I understand that the State is prepared and has been prepared and wants to go forwards as soon as possible, as does Mr. Jones. Docket 225, Ex. H (Hearing Tr. of Office Conference, Nov. 12, 2003, at 36:4-11). 32

33 ensure that Jones received a fair trial by affording his attorneys ample time to prepare. Therefore, the Court finds that the reasons for the delay weigh only slightly in Jones favor. 75 (3) Defendant s Assertion of the Speedy Trial Right Turning next to the question of whether Jones timely and vigorously asserted his speedy trial rights, the Court finds that Jones continually asserted his speedy trial rights during the pendency of this case. Not only did he file motions with the Court asserting this right, but during hearings, he repeatedly informed the Court of his desire to go to trial. As a result, this issue was preserved for appeal. Despite Jones repeated invocation of his speedy trial rights, his counsel did not raise the speedy trial issue on appeal. The defense explained its decision to forego making the argument by noting that it was likely unmeritorious and would divert attention from Jones other more persuasive appellate arguments. Since the issue was not raised on appeal, Jones did not 75 See Barker, 407 U.S. at 531 ( Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. ). In Page v. State, the Supreme Court addressed a similar claim of a speedy trial violation and found that the reasons for the delay the same reasons Jones identifies weighed only slightly in favor of Page. See Page v. State, 934 A.2d 891, 897 (Del. 2007) ( There is no evidence in the record that the assignment of defense counsel and the trial scheduling was intended to hamper Page s defense. On balance this factor weighs only slightly in Page s favor, and less than it would had State s actions been deliberate. ). 33

34 timely and vigorously assert[] his right to a speedy trial[,] 76 and the Court cannot consider it in this collateral proceeding. 77 This factor therefore weighs against Jones. (4) Prejudice to Defendant As a final consideration, the Court must consider whether the defendant suffered any prejudice as a result of the delay. With regard to this factor, the Court should consider three interests of the defendant that the speedy trial right was designed to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. 78 The Court agrees with Jones that, with regard to the first factor, he was prejudiced because pretrial incarceration is inherently prejudicial. 79 He also wrote numerous letters to the Court and other personnel because of 76 Dabney, 2008 WL at *8. The Barker Court also noted that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. Barker, 407 U.S. at Super. Ct. Crim. R. 61(i)(3); see also Hassan-El, 2008 WL at *3 ( Because the Defendant failed to raise these Constitutional issues on his direct appeal, they are procedurally barred and the Court need not address them unless cause and prejudice is shown by the Defendant. ). 78 Dabney, 2008 WL at *9. 79 Id.; see also Middlebrook, 802 A.2d at

35 his solitary confinement. 80 Indeed, Jones expressed constant anxiety and concern throughout the process. Aside from the inherent unfairness of confinement, however, Jones defense was not impaired as a result of the delay. As discussed earlier, most of the delay between arrest and trial resulted from the Court s desire to ensure he had a fair trial. Indeed, the Court addressed Jones directly to explain its reasoning for continuing the trial date, for the purpose of allowing newly appointed attorneys to prepare an adequate defense. Although Jones contends that he was prejudiced because he was unable to locate his alibi witness, one Desiree Harper, the facts do not support his claim. Defense counsel responded to this charge by stating that they did in fact communicate with Ms. Tina or Trina Williams, the only person identified by Jones as a prospective alibi witness, but she was unable to remember anything about what occurred on the day of the murders. It was for that reason that she was not called as a witness. For the first time in this litigation, Jones now names Desiree Harper, but he apparently never told his attorneys about her. Obviously, the more time that Jones is in prison, the more opportunities he has had to fabricate witnesses. The Court notes that he would most certainly have mentioned them to his attorneys if in fact they 80 Docket 225, Ex. I. 35

36 would have been able to provide testimony favorable to him. His failure to do so leads the Court to conclude that they simply do not exist. The Court recognizes that Jones incarceration made it more difficult for him to prepare for trial, to meet with counsel, and to assist in gathering evidence. 81 He has failed to demonstrate, however, that he suffered any actual impairment to his defense as a result of these delays. In Page v. State, which addressed a speedy trial violation claim raised by Jones accomplice, the Supreme Court found no prejudice, despite the defendant being incarcerated for nearly two-and-a-half years before trial: Page was incarcerated before trial for slightly more than two and half years. Over half of this time can be attributed to a stay of all capital cases. Page s counsel was also counsel for Miles Brice in the certified questions appeal that addressed issues common to all capital cases, including Page s.... The answers to the certified questions applied to all capital defendants awaiting trial. The practical effect of the temporary stay was that Page and all capital defendants were included in a class with common questions of law to be decided through the certified questions in Brice. Additionally, the record shows that Page s defense was not impaired. Given the totality of the circumstances, we find no plain error and no denial of Page s right to a speedy trial. 82 Although Jones was prejudiced by the fact that he remained incarcerated before trial, much of the prejudice resulted from decisions attributable solely to him namely, his request for new counsel or from 81 Dabney, 2008 WL at *9. 82 Page, 934 A.2d at