Submitted: May 28, 2014.
Natalie Woloshin, Esquire Woloshin, Lynch, Natalie & Gagne.
Christopher S. Koyste, Esquire
Kevin Carroll, Esquire Department of Justice.
Following a jury trial in June 2011 Robert Williams (the "Defendant") was convicted of two counts of Robbery in the First Degree, two counts of Possession of a Firearm During the Commission of a Felony (i.e., the Robbery offense), one count of Conspiracy and one count of Assault in the Third Degree. Thereafter, a Motion for Judgment of Acquittal was briefed with the benefit of trial transcripts. The Motion focused on whether or not the State proved a firearm was possessed by the Defendant. The Motion was denied, and the Defendant was sentenced to twenty two (22) years Level 5, followed by probation. The Defendant's conviction was affirmed by the Delaware Supreme Court.
On August 7, 2013 the Defendant filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). Defendant complained trial counsel was ineffective, that his "record" was illegally obtained, and the Court had erred as to an evidentiary ruling.
Pursuant to Rule 61, as amended in 2013, Natalie S. Woloshin, Esquire ("Ms. Woloshin") was appointed for the Defendant.
On December 17, 2013 Ms. Woloshin filed Defendant's Amended Rule 61 Motion. Trial counsel has submitted a Rule 61(g) Affidavit. In response, the State has submitted its position, and the Defendant filed his reply on March 14, 2014. On May 28, 2014 an evidentiary hearing took place. The matter is now ripe for a decision.
The present postconviction claims are: (i) trial counsel was ineffective by failing to file a suppression motion based on the Defendant's unreasonable delay in being presented to a Magistrate; (ii) trial counsel was ineffective by not objecting to the admission of co-conspirator testimony; and (iii) trial counsel was ineffective by not investigating and developing mitigating evidence at sentencing.
APPLICABLE LAW AS TO ALL THREE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
Since the Defendant's claims allege ineffective assistance of counsel, it is appropriate to set forth the applicable law our Supreme Court recently reviewed when it applied the Strickland standard in Swan v. State:
Strickland requires Swan [the defendant] to make two showings. First, Swan [the defendant] must show that defense counsel's performance was deficient. ("This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed to . . . [the defendant] by the Sixth Amendment."). Second, Swan must show that his counsel's deficient performance prejudiced the defense. ("This requires showing that counsel's errors were so serious as to deprive . . . [the defendant] of a fair trial, a trial whose result is reliable."). In Strickland, the United States Supreme Court explained that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." ("The object of an ineffectiveness claim is not to grade counsel's performance.").
Under Strickland's first prong, judicial scrutiny is "highly deferential." ("[T]he defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"). "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Accordingly, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." The Strickland court explained that "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." A movant "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment."
Under Strickland's second prong, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." In other words, "not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding." "Some errors will have had a pervasive effect..., and some will have had an isolated, trivial effect." Accordingly, "[t]he [movant] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." "Reasonable probability" for this purpose means "a probability sufficient to undermine confidence in the outcome." In making this determination, the Strickland court explained that a court must consider the "totality of the evidence, " and "must ask if the [movant] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors." "[T]he Strickland standard must be applied with scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve."
EVIDENCE AT TRIAL
At trial there was testimony involving two incidents occurring over two consecutive days. Both incidents involved allegations of armed robbery.
In the first incident, the victim testified that when he went to the street to put the windows up in his car, he was accosted by a man with a gun pointed at him. The man told him to give up whatever he had. When the victim told him he had nothing, he was struck in the head with the gun causing bleeding. Another man searched him and then told the victim to take off his silver chain necklace. The victim gave up his chain. The victim was then told to leave, and he did.
The next day, two victims reported that while talking on the street a group of men walked by them. One of the men circled back and asked "can you do me a favor, " and then pulled out a gun. This person was later identified as a black male. Then another male approached with a gun. The men took money and cell phones from the two victims. This occurred prior to midnight.
In the early hours of the next day, July 24, 2010, the police acting on their initial investigation went to an apartment located at 709 Sandburg Place. The Defendant was taken into custody on an outstanding capias. Following the investigation, in which there were five to six witness interviews, the Defendant was interviewed. The Defendant's statement was given at 5:41 p.m. at New Castle County Police headquarters. The Defendant admitted his involvement in the offenses, and admitted being the ring leader. The Defendant's statement was admitted into evidence.
Additionally, one of the victims identified his cell phone that had been recovered by the police pursuant to the search warrant. The victim also testified he recognized the larger caliber of the two guns recovered as being used in the robbery.
Matthew Bradley ("Bradley") testified and identified the Defendant, also known as "Rock, " as being at Bradley's apartment for a party. Bradley testified that the Defendant and Cameron Davis ("Cam") left the party. Prior to Rock and Cam leaving, the two of them had a conversation about "going to rob somebody." Bradley testified ...