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State v. Payne

Superior Court of Delaware, Sussex

January 18, 2017

State of Delaware
Alonzo J. Payne, Def

          Date Submitted: November 9, 2016

          Christopher S. Koyste, Esquire

         Dear Mr. Payne and Mr. Koyste:

         Pending before the Court are postconviction matters in this case. Alonzo J. Payne ("defendant") filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). Christopher S. Koyste, Esquire was appointed to represent defendant in connection with that motion ("Postconviction Counsel"). Postconviction Counsel has filed a motion to withdraw. Because defendant's Rule 61 motion contains no valid claims, it shall be summarily dismissed. This is my decision granting Postconviction Counsel's motion to withdraw and denying the motion for postconviction relief.

         On February 26, 2014, a jury found defendant guilty of the charges of robbery in the first degree, possession of a firearm during the commission of a felony, and tampering with physical evidence. It found him not guilty of a charge of conspiracy in the second degree. On May 23, 2014, defendant was declared an habitual offender pursuant to 11 Del. C. § 4214(a). He was sentenced as follows. As to the robbery in the first degree conviction, he was sentenced as an habitual offender to 25 years at Level 5. With regard to the possession of a firearm during the commission of a felony conviction, he was sentenced as an habitual offender to 25 years at Level 5. On the conviction for tampering with physical evidence, he was sentenced to two years at Level 5, suspended for 1 year of probation at Level 3.

         Defendant appealed to the Supreme Court, which affirmed the judgment below.[1] The thorough recitation of the facts in the Supreme Court's decision follows.

(2) On August 16, 2013, Darryl Hutt ("Hutt") left work and cashed his weekly paycheck of $280 at the Service General. Hutt then walked to the apartment of Ashley Drummond ("Ashley") to find his cousin Shawn Smith ("Smith"). When Hutt arrived at the apartment, Smith was not there, but Ashley's brother Yahi Drummond ("Yahi"), her cousin Teuntay Drummond ("Teuntay"), and Payne were there. Shortly after Smith arrived, Hutt and Smith left the apartment.
(3) Smith and Ashley had been arguing throughout the day and continued to argue over the phone after Smith left the apartment. Yahi overheard the argument and called Smith. During that conversation, Smith told Yahi that he and Hutt were going to the Service General to cash Smith's paycheck. Once they arrived, Smith went inside, and Hutt remained in the car to count his money. A black Cadillac pulled into a nearby parking spot. Three males got out and approached Hutt's window. Hutt testified that he was "struck" and then felt a "snatch on [his] leg, " after which his money was gone. When Hutt looked up, he noticed that a man wearing a white shirt and red shorts had a gun pointed at him.
(4) Smith exited the Service General while the three men were walking back to the Cadillac. Smith recognized the three men as Payne, Teuntay, and Yahi. Smith testified that Payne was wearing a white shirt and red shorts. Hutt told Smith that the three men had just robbed him. Smith approached Payne and asked for the money back. Payne refused, and the three men drove off in the Cadillac. Later, Smith and Hutt went back to Ashley's apartment to ask for the money back, but Payne refused again.
(5) Smith and Hutt reported the incident to the Georgetown Police Department. In addition to describing Payne's white shirt and red shorts, Hutt reported that, of the money stolen, one of the twenty-dollar bills and one of the ten-dollar bills were torn. The police responded immediately. Upon arriving at Ashley's apartment complex, officers identified Payne by his clothing. One of the officers drew his weapon and ordered everyone to put their hands up. Payne ran into Ashley's apartment. About thirty seconds to a minute later, Payne reappeared at the front door and then exited the apartment. One of the officers then took Payne into custody. When the police searched Ashley's apartment, they found a black revolver under a couch. Tamara Midgette ("Midgette"), who was inside Ashley's apartment during the arrest, testified that Payne ran into the apartment, hid something under the couch, and gave her $179. FN 1 The money the officers recovered from Midgette included a twenty-dollar bill and a ten-dollar bill with tears matching those Hutt described.[2]
FN 1 Detective Bradley Cordrey testified that $129 was removed from Midgette and then an additional $50 was recovered "where she had hidden it in another location." Midgette testified that, "[Payne] had ran in and hid something under the couch and hid on the floor and threw me $130."

         On appeal, defendant argued " that the trial court should have declared a mistrial because a witness informed the jury of Payne's previous incarceration."[3] This disclosure occurred during an exchange between defendant's trial counsel and Smith where Smith stated he did not know defendant until later because defendant was "locked up" when Smith started dating Ashley Drummond. This Court immediately struck the phrase "locked up" and told the jury to disregard it. Defendant's trial counsel then moved for a mistrial; the trial court denied the motion. Defendant argued on appeal that this denial was an abuse of discretion. The Supreme Court employed a Pena[4] analysis where it weighed:

"(1) the nature and frequency of the comments; (2) the likelihood of resulting prejudice; (3) the closeness of the case; and (4) the sufficiency of the trial judge's efforts to mitigate any prejudice." FN 8[5]
FN 8 Smith v. State, 963 A.2d 719, 723 (Del. 2008).

         After analyzing all four Pena factors, the Supreme Court concluded that the trial court was within its discretion in denying defendant's motion for a mistrial.

         The Supreme Court's mandate was dated April 15, 2015. Defendant filed his postconviction motion on May 15, 2015. In that motion, he asserts the following claims.[6]

Ground 1
Denial the Jury the right to see victims [sic] statements
Judge denies the Jury note after my Attorney and Prosecutor agreed to the victims [sic] statement.
Ground 2
Effective Assistance of Counsel
My attorney never put in no [sic] motions that I ask him to put in on my behalf. Did not represent me as he should on his cross examining.
Ground 3
Fail to properly identify me (suspect) The victim never Identified me in trial.
Ground 4
Hearsay testimony/hearsay grounds
The state witness testimony in court was by what victim has told him was not done from face value.
Ground 5
Victim inconsistents [sic] statement/contradictory
The victim court testimony was inconsistent with his police report.
Ground 6
Evidence was insufficient.
Defendant and another was [sic] arrested wearing clothes similar according to victim court testimony.
Ground 7
interjecting of pass [sic] life style
ther [sic] were a lots [sic] of mentioning about the defendant's prior record in the hearing of Jury.

         As noted earlier, Postconviction Counsel has filed a motion to withdraw, affirming that he found no meritorious issues of law after thoroughly analyzing the record and defendant's proposed claims.

         Defendant was provided the opportunity to respond to Postconviction Counsel's motion to withdraw but did not do so.

         Before reviewing the claims, I set forth several standards which are applicable to this postconviction motion: those pertaining to procedural bars and those pertaining to ineffective assistance of counsel claims.

         First, I review the procedural bars; if a procedural bar applies to an argument, then that argument should not be considered on its merits.

         The applicable version of Rule 61 is that made effective June 4, 2014. That rule provides in pertinent part with regards to the procedural bars:

(i) Bars to relief. ~
(1)Time limitation. - A motion for postconviction relief may not be filed more than one year after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than one year after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
(2) Successive motions. - ***.
(3) Procedural default. - Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows
(A) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant's rights.
(4) Former adjudication. - Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred.
(5) Bars inapplicable. ~ The bars to relief in paragraphs (1), (2), (3), and (4) of this subdivision shall not apply either to a claim that the court lacked jurisdiction or to a claim that satisfies the pleading requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this rule.

         The above-referenced pleading requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of Rule 61 provide;

(i) pleads with particularity that new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted; or
(ii) pleads with particularity a claim that a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court or the Delaware Supreme Court, applies to the movant's case ...

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