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. ...