DATE SUBMITTED: January 14, 2014
Edward C. Gill, Esquire, attorney for Victor Rodriguez.
Melanie C. Withers, Esquire and Kathryn J. Garrison, Esquire, attorneys for the State of Delaware.
John P. Daniello, Esquire, Office of the Public Defender.
Pending before the Court is a motion for postconviction relief which defendant Victor Rodriguez, Jr. ("defendant") has filed pursuant to Superior Court Criminal Rule 61 ("Rule 61").Initially, defendant represented himself in this motion. An amended version of Rule 61(e)(1)was enacted after the State of Delaware ("the State") filed a response,  trial counsel filed his January 4, 2013 Rule 61(g) affidavit,  defendant filed his response to trial counsel's affidavit, and defendant submitted further arguments in connection with a motion for an evidentiary hearing. The Court appointed counsel to represent defendant in the postconviction proceedings in accordance with the new version of the rule. Postconviction counsel filed an amended Rule 61 motion. Trial counsel filed another affidavit, dated October 9, 2013, pursuant to Rule 61(g).Postconviction counsel responded to this affidavit. The State weighed in on the pending claims. Finally, defendant filed a reply to the State's submission. Besides seeking postconviction relief, defendant has requested funds to hire a forensic expert to determine if the fires set were the result of arson and he has requested an evidentiary hearing. This is my decision denying each of defendant's outstanding requests.
Defendant faced charges of setting fires at five different locations in Milford, Delaware and in Milton, Delaware, on two dates in April, 2009. Three of the fires occurred on April 13, 2009, with locations at the Hampton Inn, Milford, Delaware; 24286 Reynolds Pond Road, Milton, Delaware; and Daniel Drive, Milton Meadows, Milton, Delaware. Two of the fires occurred on April 24, 2009; their locations were at 104 Heritage Boulevard, Milton, Delaware and 113 Arch Street, Milton, Delaware. Defendant ultimately was indicted on five counts of arson in the second degree, three counts of criminal trespass in the third degree, one count of reckless burning, and one count of burglary in the third degree.
The jury trial took place July 12, 2010 through July 15, 2010; it resumed on July 19, 2010 and continued until July 22, 2010. The State's opening argument and the presentation of witnesses began July 13, 2010. The State rested on July 21, 2010. On that same date, defense counsel gave his opening statement and presented the defense that the State had not established defendant committed the crimes. Defendant maintained he had not caused the fires nor was he present at any of the fires.
No physical evidence tied defendant to the scene of the fires at the Hampton Inn and 24286 Reynolds Pond Road. Boot prints and bicycle tracks consistent with defendant's boots and the tires on his mountain bike tied defendant to the scenes of the remaining fires.
Defendant moved for judgment of acquittal on three counts of arson and two counts of criminal trespass in the third degree stemming from the fires occurring on April 13, 2009. The
Court granted the motion as to the counts of arson in the second degree relating to the fires at the Hampton Inn and at 24286 Reynolds Pond Road. It also granted the motion with regard to the criminal trespass in the third degree charge relating to the fire at 24286 Reynolds Pond Road. The jury then had to determine defendant's guilt or innocence on the charges of reckless burning, burglary in the third degree, two counts of criminal trespass in the third degree, and three counts of arson in the second degree resulting from three fires: the April 13, 2009 fire on Daniel Drive, Milton Meadows and the two fires occurring in Milton on April 24, 2009. The jury found defendant guilty of all these charges. Defendant was sentenced as an habitual offender. On each of the arson convictions, he was given life imprisonment.
Defendant appealed. His sole argument on appeal was that the Trial Court abused its discretion in finding that a latent fingerprint examiner qualified as an expert in tire track and shoe print analyses. The Supreme Court concluded the Trial Court did not abuse its discretion and it affirmed the judgment below. The mandate was issued on November 29, 2011.
On November 5, 2012, defendant filed his pending motion for postconviction relief. I set forth below defendant's claims, both pro se and as represented by counsel. I address whether they are procedurally barred. If they are not procedurally barred, then I set forth trial counsel's responses thereto, the State's responses, and defendant's responses to both trial counsel and the State.
1) Defendant's arrest was without probable cause or a warrant in violation of 4th, 5thand 14th amendments.
Without addressing the procedural issues, I address the contention that defendant was arrested without a warrant. Defendant and postconviction counsel are wrong about this fact. Defendant was arrested pursuant to a warrant. Any argument based on the contention the arrest was warrantless fails and is not examined.
The contention that defendant's arrest was without probable cause is procedurally barred pursuant to Rule 61(i)(3). Defendant has not tried to overcome the bar by showing cause for relief from the procedural default and prejudice or by showing that the alleged deficiencies resulted in "a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." Furthermore, as both trial counsel and the State note, the probable cause issue became moot once defendant was indicted. This claim fails.
2) There was an illegal search and seizure.
Defendant argues as follows. All evidence seized from his person without a valid search warrant should have been deemed inadmissible. An illegal search and seizure occurred. The Fire Marshal, without probable cause or a valid search warrant, took pictures of his bicycle and work boots, and when defendant returned home from work, both the bicycle and work boots were seized in violation of his constitutional rights. The Fire Marshals were not peace officers and therefore, did not have jurisdiction to make an arrest or obtain a search warrant. The totality of the circumstances did not give rise to reasonable and articulable suspicion of criminal activity to seize defendant. There was no physical evidence linking him to the crime scenes.
Before I address the procedural bars, I address another factual misstatement. Both defendant and postconviction counsel argue that the Fire Marshal actually handled defendant's boots before they arrested him. The affidavit of probable cause to the arrest warrant contains information explaining how the Fire Marshal connected boot prints at the scene to defendant's boots:
8. I [Deputy State Fire Marshal Dale Magee] was assisted by fm3 (Ward [Fire Marshal Richard Ward]) at the scene. Ward examined the boot print at the scene and responded to Allens Poultry Plant. Ward advised me that he saw standard plant boots being worn by several employees at the plant. Ward advised me that he checked the tred [sic] on a pair of boots and they looked similar to the print at the scenes. The accused was wearing the same type boots while working.
There is no logical basis for arguing that the Fire Marshal handled defendant's boots, which were on his feet, before his arrest. All arguments based on this misrepresentation of the facts fail and are ignored.
Also before addressing the procedural bars, I address defendant's contention the Fire Marshal did not have authority to arrest him. Defendant is legally incorrect. The Fire Marshal has arrest powers by way of statute. This meritless contention bears no further examination.
The remaining portions of the arguments under this heading are procedurally barred pursuant to 61(i)(3). Defendant has not tried to overcome the bar by showing cause for relief from the procedural default and prejudice or by showing that the alleged deficiencies resulted in "a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction."
3) Defendant's speedy trial rights were violated.
Defendant argues the State caused delay by filing a superseding indictment and by filing a motion in limine to use his past convictions against him in trial.
This vague, conclusory claim, also, is procedurally barred under Rule 61(i)(3). Defendant did not assert the argument in his direct appeal. Defendant has not tried to overcome the bar by showing cause for relief from the procedural default and prejudice or by showing that the alleged deficiencies resulted in "a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction."
4) Prosecutorial misconduct occurred.
Defendant argues the State committed prosecutorial misconduct when it submitted improper evidence without a proper foundation or with false evidence. He specifically asserts that the State called Rodney Hegman ("Hegman") as an expert witness and he was not an expert.
The argument that Hegman was not an expert witness is procedurally barred pursuant to Rule 61(i)(4). This is the sole issue defendant advanced on appeal, and as noted earlier, the Supreme Court affirmed the decision deeming him to be an expert. Defendant has failed to show that the issue should be reconsidered in the interest of justice. In any case, proffering Hegman as an expert witness could not be deemed prosecutorial misconduct.
The argument the State committed prosecutorial misconduct by submitting improper evidence without a proper foundation or with false evidence is conclusory and will not be considered.
5) Incomprehensible argument
Defendant makes an incomprehensible argument regarding the Court's refusal to admit Hegman's report into evidence because it was provided to defendant too late. He "contends that his right to confrontation was violated by inadequate cross examination of a prosecution witness, his right to a speedy trial was denied ..., and his right to a fair trial was violated."
The Court will not speculate as to what defendant means by this argument. The Court refuses to consider it.
6) Insufficient evidence
Defendant argues the evidence adduced at trial was insufficient to sustain a conviction.
This issue is procedurally barred pursuant to Rule 61(i)(4). Trial counsel moved for a judgment of acquittal on the ground of insufficiency of the evidence. Although the Court granted the motion with regard to two of the fires, it denied it regarding three of the fires. Thereafter, the jury found him guilty on the remaining charges. Thus, the issue was decided in the proceedings leading to the judgment of conviction. Defendant has failed to establish that the issue should be addressed again in the interest of justice.
7) Ineffective assistance of counsel
Defendant himself as well as his postconviction counsel argue trial counsel was ineffective in numerous respects. There are no procedural bars to these ineffective assistance of counsel claims and I consider them below.
Initially, I set forth the standards for reviewing an ineffective assistance of counsel claim. The law set forth in State v. Dickinson,  is helpful, where the Superior Court stated:
15.The burden of proof for ineffective assistance of counsel claims is on the defendant and is governed by the two prong Strickland test, each of which must be satisfied to reverse a conviction.FN26 First, Defendant must prove that trial counsel's representation was objectively unreasonable by a preponderance of the evidence.FN27 When assessing counsel's performance, judicial scrutiny is highly deferential because of a defendant's temptation to second guess counsel's assistance after conviction.FN28 The Court must ignore the "distorting effects of hindsight" and the defendant must overcome the strong presumption that counsel's conduct was reasonably professional and sound under the circumstances.FN29 However, showing that counsel's "conduct was not, in fact, part of a strategy or by showing that the strategy employed was unsound" may rebut this presumption.FN30
FN26. Strickland v. Washington, 466 U.S. 668 (1984).
FN27. Id. at 688.
FN28. Id. at 689.
FN29. State v. Wright, 653 A.2d 288, 293–94 (citation omitted).
FN30. Thomas v. Varner, 428 F.3d 493, 499–500 (3rd Cir.2005).
16.Within this first Strickland prong, there is an important distinction between certain fundamental rights inherent to criminal defendants contrasted against "decisions that involve tactics and trial strategy." FN31 Defendants have fundamental rights for plea decisions, jury trial waivers, and whether to testify.FN32 Fundamental rights may also include the decision to forego appeals and accept the death penalty, whether to waive the right to counsel, and whether to appeal.FN33 Such fundamental rights are "so personal to the defendant 'that they cannot be made for the defendant by a surrogate.' " FN34 "[T]hese fundamental decisions are indeed strategic choices that counsel might be better to make, because the consequences of them are the defendant's alone, they are too important to be made by anyone else." FN35 However, clients normally defer to a lawyer's special knowledge and skill for accomplishing legal objectives, particularly regarding tactical matters which are non fundamental.FN36 Accordingly, counsel is responsible for deciding whether to request a lesser included offense or level of liability instruction because jury instructions fall within trial strategy. FN37
FN31. Bradshaw v. State, 806 A.2d 131, 138 (Del.2002).
FN32. Prof.Cond.R. 1.2(a) (2008) stating a lawyer: "shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify."
FN33. Cooke v. State, 977 A.2d 803, 841–42 (2009); Bradshaw, 806 A.2d at 138.
FN34. Cooke, 977 A.2d 803, 841 (2009) (citing Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (citing Strickland, 466 U.S. at 688; Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)).
FN35. Id. at 842 (citations omitted).
FN36. Prof.Cond.R. 1.2 cmt. 2 stating: "Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters."
FN37. Cf. Cooke, 977 A.2d 803, 841–42 (2009) ("The defense attorney's duty to consult with the defendant regarding 'important decisions' does not require counsel to obtain the defendant's consent to 'every tactical decision.' ") (citations omitted); Bradshaw, 806 A.2d at 138 (citing Prof.Cond.R. 1.2(a) (providing that a lawyer "shall consult with the client as to the means by which [the objectives of representation] are to be pursued"); Ann. Model Rules of Prof'l Conduct R. 1.2 cmt. at 20 (3d ed. 1996) ("[D]ecisions that involve tactics and ...