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State v. Barnhart

Superior Court of Delaware

March 24, 2017

STATE OF DELAWARE,
v.
KERMIT J. BARNHART, Defendant.

          Submitted: March 20, 2017

         Cr.A. Nos. IN15-04-1339R1, etc.

          Kermit J. Barnhart, Pro Se Mark C. Petrucci, Deputy Attorney General

          ORDER DENYING MOTION FOR POSTCONVICTION RELIEF

          Paul R. Wallace, Judge

         This 24th day of March, 2017, upon consideration of the Defendant Kermit J. Barnhart's ("Barnhart") Motion for Postconviction Relief (D.I. 26); the State's Response thereto (D.I. 33); and the record in this matter, it appears to the Court that:

         (1) Kermit J. Barnhart was indicted on June 8, 2015 for Driving Under the Influence-Felony (5th Offense) ("DUI") and multiple related charges.[1]Following a jury trial, Barnhart was convicted of the DUI and four other counts.[2] He was sentenced on November 6, 2015 to serve, inter alia, 18 months at Level V for DUI.[3]

         (2) This motion is Barnhart's first and timely motion for postconviction relief. He raises a single claim alleging ineffective assistance of counsel. Specifically, Barnhart seeks vacatur of his conviction and a new trial because, in his estimation, his trial counsel allowed certain evidence - the recordings of his interaction with the police on the night he was investigated for DUI - to be improperly admitted.[4]

         (3) Prior to trial, the State provided to Barnhart's defense counsel the video recordings containing Barnhart's interactions with the police on the night he was investigated for DUI.[5] Those recordings contained portions that did not relate to Barnhart's case, were irrelevant to the specific charges, or were inadmissible for other reasons.[6] Barnhart's counsel and the prosecutor had discussed which portions of the recordings would be used at trial and agreed on the contents of one compilation disc with those admissible portions.[7]

         (4) Barnhart now claims that his counsel "failed to challenge the adulteration of video tape of this incident" and that "[t]he police cut portions of the videos to make a distorted story of what occurred."[8] These contentions, however, are entirely conclusory. They lack any factual support or citation to the record. And so, while Barnhart cites the proper legal standard for ineffective assistance of counsel claims and the proper legal standard for the foundational requirements for the admission of physical evidence, he does nothing to demonstrate either was breached here.

         (5) In order to prevail on a claim for ineffective assistance of counsel pursuant to Superior Court Criminal Rule 61, Barnhart must show both: (a) that his lawyer's representation fell below an objective standard of reasonableness, and (b) that there is a reasonable probability that but for his lawyer's errors, the result of the proceeding would have been different.[9] Barnhart may not rely on conclusory statements of ineffective assistance; instead he must plead his allegations of prejudice with particularity.[10] In evaluating this claim, the Court is mindful that there is a strong presumption that the trial counsel's representation was reasonable, [11] and that "[i]t is not this Court's function to second-guess reasonable trial tactics."[12] Barnhart fails to carry his burden to establish either showing required by the ineffective assistance of counsel test.

         (6) First, his lawyer's decision to review the State's video evidence pre-trial and to agree to redactions of irrelevant and inadmissible material was objectively reasonable.[13] "When a defendant is represented by counsel, the authority to manage the day-to-day conduct of the defense rests with the attorney."[14] And an attorney's decision as to what evidence to admit and to which evidence he should object is a tactical decision that deserves great weight and deference.[15] Barnhart has thus failed to overcome the strong presumption that his counsel acted reasonably[16] and on that basis alone his ineffectiveness claim must fail.[17]

         (7) Second, however, Barnhart also has failed to demonstrate that any foundational objection to the video evidence as presented would have been successful, that further investigation of the video evidence would have been fruitful, or that some different version of the video evidence would have resulted in a different outcome at trial.[18] And with no specifics offered as to how some different version of the video evidence now suggested would have changed the outcome of the trial, Barnhart cannot succeed on a claim of ineffective assistance of counsel.[19]

         (8) Barnhart has not shown that his attorney's representation fell below an objective standard of reasonableness or that, but for that attorney's alleged errors, there is a reasonable probability that his trial would have been different. ...


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