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State v. Walsh

Superior Court of Delaware

September 26, 2018

HOWARD A. WALSH, Defendant.

          Submitted: June 7, 2018

          Howard A. Walsh, Zachary Rosen, Deputy Attorney General

          Ralph D. Wilkinson, Esquire

          R. Joseph Hrubiec, Esquire



         This 26th day of September, 2018, upon consideration of the Defendant Howard A. Walsh's Amended Motion for Postconviction Relief (D.I. 78), [1] his trial counsel's affidavit (D.I. 82), his former postconviction counsel's affidavit (D.I. 81), the State's response to those submissions (D.I 84), Mr. Walsh's reply (D.I. 88), and the record in this matter, it appears to the Court that:

         (1) Howard A. Walsh was indicted in January 2015, on three counts of Possession of a Firearm by a Person Prohibited, one count of Possession of Ammunition by a Person Prohibited, one count of Carrying a Concealed Dangerous Instrument, and one count of Criminal Impersonation.[2] Following a jury trial, Mr. Walsh was convicted of all counts. After a pre-sentence investigation was prepared, the Court sentenced Mr. Walsh to serve a cumulative 30-year term of imprisonment followed by and probationary supervision.[3]

         (2) He filed a direct appeal. Mr. Walsh was represented by Ralph D. Wilkinson, Esquire ("Trial Counsel"), through his trial proceedings and the docketing of his direct appeal. He was permitted to proceed pro se during direct appeal.[4] And in that appeal, his convictions and sentence were affirmed by the Delaware Supreme Court.[5]

         (3) Mr. Walsh filed his first timely postconviction motion pro se. (D.I. 45). In it he raised various claims of ineffective assistance of counsel ("IAC"). And so, he was appointed counsel, R. Joseph Hrubiec, Esquire ("PCR Counsel"), to represent him (D.I. 50).

         (4) PCR Counsel filed an amended motion and supporting materials. (D.I. 65). Unhappy with those efforts, Mr. Walsh moved to discharge PCR Counsel (D.I. 69) and revive his pro se arguments.

         (5) The Court heard the motion to discharge and subsequently ordered that:

(a) PCR Counsel was relieved as postconviction counsel and Mr. Walsh could proceed pro se in subsequent postconviction proceedings;
(b) all prior pro se postconviction motions, and that which PCR Counsel filed, were deemed Moot;
(c) Mr. Walsh was permitted to file a pro se amended fully-integrated postconviction motion under Superior Court Criminal Rule 61. That motion was to include any and all postconviction claims that Mr. Walsh wished the Court to consider.[6]

         (6) The Court now has before it Mr. Walsh's final amended petition[7] that raises five claims:

(a) IAC by Trial Counsel for allegedly failing to-(i) properly pursue discovery of certain police patrol car dashcam video footage Mr. Walsh believes exists and make related suppression arguments, (ii) object to certain trial arguments by the prosecutor, (iii) prevent presentation of his prior felony conviction to prove the person prohibited element of his charged crimes, and (iv) make a mistake of law argument on his behalf;
(b) A due process violation based on his belief in the existence of certain police patrol car dashcam video footage;
(c) A due process violation based on his belief that there was juror intimidation;
(d) Prosecutorial misconduct due to alleged discovery violations and arguments before the jury; and
(e) IAC by PCR Counsel counsel for failing to pursue the arguments that Mr. Walsh now makes due to an alleged "interest to defend trial counsel and the state police."[8]

         (7) When considering applications for postconviction relief under its criminal rules, this Court addresses any applicable procedural bars before turning to the merits.[9] This policy protects the integrity of the Court's rules and the finality of its judgments. Addressing the merits of a case that does not meet procedural requirements effectively renders our procedural rules meaningless.[10]

         (8) Rule 61 sets forth procedural bars to postconviction claims, including that "[a]ny 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 . . . [c]ause for relief from the procedural default and . . . [p]rejudice from violation of the movant's rights."[11] Walsh's failure to raise his second and fourth claims-i.e., his due process argument regarding the alleged withheld police dashcam video and his prosecutorial misconduct complaint-either during trial or on direct appeal prevents the Court from addressing it now unless Walsh shows cause for relief and prejudice from a violation of his rights. Walsh has demonstrated neither the requisite cause for relief nor prejudice. And so, these claims are barred Rule 61(i)(3).

         (9) Mr. Walsh represented himself during appeal and while he raised a related suppression claim that he believes would have been supported by the alleged missing video footage, he made no due process claim. He demonstrates no cause for this failure. But more important, there is nothing that could have been turned over. During these postconviction proceedings Mr. Walsh's suspicions regarding the imagined helpful police dashcam footage were investigated by the State. There never was any such footage, [12] and Mr. Walsh could therefore not be prejudiced by the withholding of that which never existed.

         (10) Similar failures doom his prosecutorial misconduct complaints. In his fourth claim, Walsh surmises that the State "fail[ed] to turn over all the Rule 16 discovery material to assign[ed] counsel . . ., with[held] material that there is confidential informant whose name is Lisa Smith," and suggests the prosecutor "misled the jury in his opening statement. . . [and] during closing argument."[13] He never raised either such allegation on direct appeal. And there is no mention, from any credible source, of an informant "Lisa Smith," who allegedly tipped off police and would be helpful to Mr. Walsh's defense. Again, Mr. Walsh can hardly be prejudiced by failure to turn over non-existent material. Nor does the trial record reveal that Mr. Walsh's quibbles with the wording of the prosecutor's trial arguments demonstrate prejudice. A prosecutor in his or her opening statement or closing argument is "allowed and expected to explain all the legitimate inferences of [a defendant's] guilt that flow from th[e] evidence" adduced at trial or to be adduced at trial.[14] That is what the prosecutor did during Mr. Walsh's trial.

         (11) Rule 61 has another procedural bar that is applicable to Mr. Walsh's claim alleging juror intimidation: "[a]ny 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."[15] On direct appeal, Mr. Walsh argued "that he was deprived of his right to a fair and impartial trial because [the State's chief investigating officer] engaged in conduct designed to intimidate the jurors into returning a favorable verdict for the State."[16] And on direct appeal, the Delaware Supreme Court found "[n]othing in the record supports [Mr.] Walsh's claim that [the ...

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