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State v. Carter

Superior Court of Delaware

January 18, 2017

STATE OF DELAWARE,
v.
ARTHUR CARTER, Defendant.

          Submitted: October 19, 2016

         Upon Defendant's Amended Motion for Postconviction Relief. DENIED.

          Matthew C. Buckworth, Esquire, and Patrick J. Collins, Esquire, Collins & Associates, Wilmington, DE. Attorneys for Defendant Arthur Carter.

          Kelly Hicks Sheridan, Deputy Attorney General, Delaware Department of Justice, Wilmington, DE. Attorney for the State.

          OPINION

          Jurden, P.J.

         INTRODUCTION

         Before the Court is Defendant Arthur Carter's Amended Motion for Postconviction Relief, [1] the Affidavits of Trial Counsel and Appellate Counsel, [2] the State's Response, [3] and Defendant's Reply.[4] For the following reasons, the Amended Motion is DENIED.

         BACKGROUND

         On June 22, 2013, Defendant Arthur Carter got into an argument with his pregnant girlfriend, Morlicea Capers ("Capers").[5] Following the argument, Capers' uncle pushed Defendant out of the residence, whereupon Defendant fired a gun into the air and sped off in a silver car.[6] At the time Defendant fired the gun, he was a person prohibited by law from possessing a firearm due to a prior conviction.[7]

         On January 7, 2014, Defendant was brought to trial on charges of Aggravated Menacing, Possession of a Firearm During the Commission of the Felony ("PFDCF"), and Possession of a Firearm by a Person Prohibited ("PFBPP").[8] The State presented the testimony of five witnesses: two neighborhood residents; a police officer who responded to Capers' 911 call; a custodian of 911 call records for New Castle County; and the detective who interviewed Defendant.

         The first neighborhood resident testified to hearing an argument coming from the residence and to hearing gunshots soon thereafter.[9] The second neighborhood resident testified to hearing a single gunshot.[10]

         The police officer who responded to Capers' 911 call testified he arrived at the scene within minutes after Capers called 911, Capers was "very excited, very upset, agitated, " and she remained excited during the time the officer spoke with her.[11] Capers told the officer she had a dispute with Defendant that resulted in Defendant leaving the residence, returning to fire a gun into the air, and then fleeing in a silver vehicle.[12]

         The 911 custodian testified that two 911 calls were made regarding the incident.[13] The first call was made by Capers; the second, by a child inside the house. The Court granted the State permission to begin playing Capers' 911 call to the jury based on the State's proffer.[14] After hearing a portion of the 911 call, the Court stopped the recording for a brief recess, and the jury left the courtroom.[15]

         During the recess, the Court held a discussion with the State and Defendant's trial counsel regarding the admissibility of the 911 call.[16] The Court found that the portion of Capers' 911 call that was played for the jury qualified as an excited utterance under Delaware Rule of Evidence ("D.R.E.") 803(2) and, in accordance with Dixon v. State, [17] was non-testimonial such that its admission did not violate the Confrontation Clause of the Sixth Amendment to the United States Constitution.[18] The remainder of Capers' 911 call was not played for the jury.

         Before the jury returned to the courtroom, the Court listened to the 911 call made by a child inside the residence and found the call admissible.[19] The jury returned to the courtroom, and the child's call was played to the jury.[20]

         The detective who interviewed Defendant testified that Defendant provided three different accounts of what occurred during his interview.[21] In all three accounts, Defendant admitted to having a verbal dispute with Capers and that Capers' uncle pushed Defendant out of the residence.[22] However, in the first account, Defendant stated that he heard a gunshot after being pushed out of the residence but did not know its point of origin. In the second account, Defendant stated that, after being pushed out of the residence, he saw a friend of his accompanied by an unknown male and that the unknown male fired a shot into the air. In the third and final account, Defendant stated that the first two accounts were untrue and that he fired a shot into the air after being pushed out of the residence.

         Following the detective's summation of Defendant's interview, the State played a recording of the interview for the jury.[23] The detective's recounting of the substance of the interview was intended to clarify the recording which was heavily redacted in order to remove references to a companion case.[24]

         Finally, rather than the State introducing potentially prejudicial evidence of Defendant's prior conviction to prove the PFBPP charge, the parties stipulated that Defendant was a person prohibited from possessing a firearm.[25] The stipulation stated only that Defendant is prohibited from possessing a firearm; it did not indicate why.

         Capers did not testify at trial.[26] At the close of the State's case, Defendant moved for a judgment of acquittal on the charge of Aggravated Menacing and the companion charge of PFDCF on the basis that the State did not produce sufficient evidence that Capers, the victim of the Aggravated Menacing charge, was actually in fear of imminent physical injury.[27] In response, the State asserted that it met its burden of proof through circumstantial evidence, consisting of Capers' statements during the 911 call and the testimony of the police officer who responded to the 911 call.[28] The Court denied Defendant's motion for judgment of acquittal.[29]

         Defendant did not testify and called no witnesses.[30] During closing argument, defense counsel, inter alia, challenged the State's case by highlighting the State's failure to produce Capers as a witness at trial.[31] Defense counsel' questioned why the State would rely on Capers' 911 call-rather than her live testimony subject to cross examination-as evidence that she was placed in fear of imminent physical injury.[32]

         The jury found Defendant guilty of all charges, [33] and on April 11, 2014, Defendant was sentenced.[34]

         On direct appeal, Defendant's appellate counsel filed a brief and motion to withdraw under Supreme Court Rule 26(c), asserting that there were no arguably appealable issues. In response, Defendant raised four arguments pro se\ (1) "the State violated his Sixth Amendment right to confront a witness against him when it failed to call the victim to testify;" (2) "the State's evidence was insufficient to establish his guilt on the charge of PFDCF because there was no gun or shell casing or other physical evidence admitted at trial;" (3) "the admission into evidence of his taped interview with the police violated his due process rights because his statement was not knowing and voluntary because he was intoxicated;" and (4) "the State violated Brady v. Maryland when it failed to disclose that the victim had written two letters recanting her prior statement to the police."[35]

         On November 12, 2014, the Delaware Supreme Court affirmed the judgment of conviction.[36]

         On January 6, 2015, Defendant submitted a Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61.[37] Counsel was appointed, and Defendant thereafter submitted an Amended Motion for Postconviction Relief.[38] Defendant alleges five grounds for relief: (1) trial counsel was ineffective for stipulating that Defendant was a person prohibited at the time the offense occurred; (2) trial counsel was ineffective for failing to file a motion in limine to exclude the 911 calls; (3) trial counsel was ineffective for not contacting Capers as a possible defense witness; (4) trial counsel was ineffective for failing to object to hearsay statements introduced through the police officer who responded to the scene; and (5) appellate counsel was ineffective for failing to raise claims on appeal that were preserved by trial counsel.[39]

         STANDARD OF REVIEW

         Motions for postconviction relief are governed by Superior Court Criminal Rule 61. Rule 61(i) bars relief on any ground for postconviction relief that: (1) was not timely filed; (2) was not asserted in prior postconviction motions; (3) was not asserted in the proceedings leading to the judgment of conviction; or (4) was previously adjudicated. Claims of ineffective assistance of counsel generally cannot be brought at trial or on direct appeal and, therefore, generally are not procedurally barred by Rule 61(i)(3).[40]

         This is Defendant's first Rule 61 motion, it was timely filed, and it concerns only claims of ineffective assistance of counsel. Consideration of the merits is not barred by Rule 61 (i)(1)-(4) except as discussed below in relation to Ground Two.

         DISCUSSION

         Claims of ineffective assistance of counsel are governed by the Strickland v. Washington two-prong test.[41] To establish a claim of ineffective assistance of counsel under Strickland, a defendant must show: (1) counsel's performance fell below an objective standard of reasonableness; and (2) prejudice, meaning that, but for counsel's unprofessional errors, there is a reasonable probability the result of the proceeding would have been different.[42]

         Ground One

         In his first ground for relief, Defendant asserts that trial counsel provided ineffective assistance when trial counsel stipulated to Defendant's status as a person prohibited from possessing a firearm and that, as a result, Defendant suffered constitutional prejudice.[43] In support of this assertion, Defendant argues that trial counsel should have moved to sever the PFBPP charge and have it tried separately from the Aggravated Menacing and PFDCF charges in order to minimize prejudice to Defendant based on his status as a person prohibited.

         The record reflects that Defendant was not prejudiced by the joinder of Defendant's PFBPP charge with the Aggravated Menacing and PFDCF charges. Neither the stipulation of Defendant's status as a person prohibited nor the copy of the indictment included with the jury instructions indicate why Defendant was prohibited from possessing a firearm.[44] Further, the jury instructions on the PFBPP charge contain the following limiting instruction:

The reason that the defendant is prohibited from owning or possessing a firearm is irrelevant to your deliberations in this case. You shall not speculate as to the reason why defendant is prohibited, nor consider that fact as evidence of guilt as to the other crimes alleged in the indictment.[45]

         Consistent with that limiting instruction, the State never emphasized Defendant's status as a person prohibited to the jury. In its opening statement, after describing the events it intended to prove, the State summarized the charges alleged against Defendant:

For this he stands before you charged with possessing that handgun in violation of the law, for aggravated menacing for displaying a deadly weapon in order to cause ... fear of injury ... and for possession of a firearm during the commission of a felony .. ..[46]

         The State did not indicate why Defendant's possession of a handgun would violate the law, and neither the State nor Defendant's trial counsel made any other reference to the PFBPP charge until the State submitted the stipulation into evidence at the close of its case. Thereafter, during closing argument, the State told the jury that the element of being a person prohibited was stipulated to without any further comment that might invite jury speculation.[47]

         For the foregoing reasons, Defendant has not demonstrated that he was prejudiced by the joinder, and therefore, Defendant's ineffective assistance claim on this ground fails.[48]

         Ground Two

         In his second ground for relief, Defendant asserts that trial counsel provided ineffective assistance when trial counsel did not file a motion in limine to exclude: (1) the entirety of the 911 call made by the child; and (2) portions of the 911 call made by Capers that did not qualify as excited utterances.[49]

         A. The Child's 911 Call

         In support of his first argument, Defendant argues that the child's 911 call should have been excluded under D.R.E. 403 as unfairly prejudicial and cumulative because the child was audibly upset and because the information provided by the child was largely duplicative of Capers' 911 call. Defendant maintains the child's 911 call "added no substance to the trial, but rather, only served to tug on the heartstrings of the jurors."[50]

         On this issue, Defendant fails to substantiate that counsel provided ineffective assistance because Defendant's argument that the child's 911 call should have been excluded pursuant to D.R.E. 403 is without merit. D.R.E. 403 states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence."[51] In her 911 call, the child placed Defendant outside of the residence with a gun and stated that Defendant shot the gun. These statements are plainly relevant to core facts in the case. Thus, the child's statements were both highly probative and unlikely to confuse or mislead the jury.

         As to Defendant's argument that the child's statements were excludable under D.R.E. 403 as cumulative, this argument lacks merit. Cumulative evidence is "[a]dditional or corroborative evidence to the same point. That which goes to prove what has already been established by other evidence."[52] The State introduced statements from two eyewitnesses, Capers and the child. The eyewitness statements were largely consistent with each other and consistent with Defendant's admission to the police during his interview that he fired a gun into the air following an altercation with Capers' uncle. Thus, the child's 911 call was partially cumulative in that it was corroborative of key evidence in the case. However, given the small number of witness statements and the possibility of Defendant or Capers testifying at trial inconsistently with their prior statements, any "needless[ly]" cumulative aspect of the child's 911 call was de minimus such that exclusion was not warranted under D.R.E. 403.

         Defendant's argument that the child's emotional state during the 911 call was needlessly inflammatory, such that the 911 call was excludable as prejudicial under D.R.E. 403, also lacks merit. Any potential for the child's emotional 911 call to inflame the passions of the jury was mitigated both by the call's brevity[53] and by the State's scrupulous efforts not to improperly ply the jury's sympathies. During its opening statement, the State, in passing, referred to the child's 911 call as the 911 call of an inhabitant of the residence.[54] During trial, the State authenticated the child's 911 call through the 911 custodian without reference to the identity of the caller or the caller's emotional state.[55] Finally, during closing argument, the State touched upon the factual elements of the child's statements- Defendant was in front of the house and shot a gun-but did not reference the child's emotional state as evidence to support any fact in dispute.[56] Rather, the State made clear that Capers was the victim of the Aggravated Menacing charge and cited Capers' statements to the 911 operators as evidence that Defendant's actions placed her in fear of imminent physical injury.[57]

         For the foregoing reasons, the probative value of the child's 911 call was not "substantially outweighed" by any unfair prejudice or needless cumulativeness.[58] Therefore, Defendant has failed to show either that trial counsel's performance fell below an objective standard of reasonableness for failing to file a motion in limine ...


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