State of Delaware v. Hassett.
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SUPERIOR COURT OF THE STATE OF DELAWARE RICHARD F. STOKES JUDGE P.O. BOX 746 COURTHOU SE GEORGETOWN, DE 19947 August 25, 2003 Robert W. H assett, III Sussex Correctional Institution P.O. Box 500 Georgetown, DE 19947-0500 RE: State v. Hassett, Def. ID# 0005011315 DATE SUB MITTED: May 14, 2003 Dear M r. Hassett: Pending before the Court is the motion of Robert W. Hassett, III ("defendant") for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). Defendant also makes a motion for a new trial based on allegedly "recanted" testimony. Although he makes this latter motion within the R ule 61 mo tion, the Co urt treats it as thou gh it is made pursuant to Superio r Court C riminal Ru le 33 ("Ru le 33"). This constitutes m y decision on the pending motions. PROCEDURAL HISTORY AND FACTS Defendant was arrested for, and tried on, the charges of murder in the first degree and possession of a deadly weapon during the commission of a felo ny. The jury found he intentionally caused the death of his step-mother Sherri L. Hassett on May 14, 2000, by stabbing her with a knife, and it found him guilty as charged. 1 Sherri Hassett lived with defendant's father and her children in a double -wide m obile home in Sussex County, Delaware. At one end of the home was an apartment which was partition ed off from th e rest of the hom e; this is w here de fenda nt lived. Before May 13 , 2000, defendant's behavior was causing conflicts between him and his father and step-mother. Defendant and his friend Jason Coggin ("Coggin") had been drinking and using drugs mo st of the day an d evening of Ma y 13, 2000. L ate in the evening of May 13, 2000, defendant's father told defendant he had to move o ut of the ap artment. Soon thereafter, defendant confronted Sherri Hassett outside the residence and stabbed her to death. De fendant c ame bac k into his resid ence, told Coggin what he had done, and had Coggin help him mov e Sherri Has sett's body from outside to inside his apartment. Defendant and Coggin then went into defendant's father's portion of the residence, awoke him, and told him about the murder. Coggin took off running, ev entually making his way to his own home. Defendant took Sherri Hassett's car and fled to his natural mother's house in Ken t County, where the police located him. At trial, Coggin testified he was inside defendant's apartment when the murder occurred and helpe d bring Sh erri Hassett's bo dy from ou tside to inside. Defendant, on the other hand, testified that Coggin was the one who killed Sherri Hassett; that he had no idea Coggin would do that; that he did not participate in the murder at all; and that he was so shocked when the killing took place, he could not do anything. The jury rejected defendant's version of events and convicted him as charged. The Court sentenced defendant, on August 10, 2001, to Level 5 for the balance of his natural life on the m urde r in th e firs t deg ree c onvictio n and to twen ty (20) years at Leve l 5 on the 2 possession of a deadly weapon during the commission of a felony conviction. On appeal, defendant raised one issue. He argued tha t the trial court ab used its discretion in only granting a cautionary instruction regarding the prosecutor's implication in his rebuttal closing argument that defendant's testimony was tailored to fit the evidence he had seen and heard throughout his trial. The Delaware Supreme Court affirmed the judgment of the Superior Court, holding that defendant's appeal issue failed in light of the United States Supreme Court decision in Portuondo v. A gard, 529 U .S. 61 (2 000). Hassett v. S tate, Del. Supr., No. 420 , 2001, Steele, J. (May 15, 2002 ). On May 2, 2003, defe ndant filed the pending motions. I discuss them sep arately below. DISCUSSION 1) Motion for New Trial Defendant argues that the prosecutor forced Jason Coggin to lie, as Cog gin explains in an affidavit, and the Court should grant a new trial based on prosecuto rial miscond uct. Defendant actually is seeking a new trial based on newly discovered evidence - the alleged recantation of Cog gin. The ap propriate ve hicle for considering this motion is Rule 331 . Cf. Weedon v. State, 750 A.2d 521 (Del. 2000) (where the new trial motion was time-barred under Rule 33, the facts of the case allowed for the Court to review a recantation under the 1 In Super. Ct. Crim. R. 33, it is provided: The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice. *** A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment.... 3 interest of justice exception in Ru le 61(i)(4)). Defendant submits the following copy of an affidavit from Coggin dated August 23, 2002: I, Jason Coggin, he reby s wear th at the sta temen t I am giv ing is the truth. I was not c oerced, brib ed, or threaten ed to give th is statement. The statement that I gave as a witness for the prosecution in Robert W. Hassett 3rd's trial was not the truth. Not only was it not the truth, but I was coerced by Jim Adkins, the prosecutor. Jim Adkins told me what to say and what I was not to say. He also gave me information to say at trial. Mr. Adkins also threatened me by saying that if I did not testify to the ef fects of what he and the police told me to say, then I would go to prison. So, due to my fear of going to p rison, I lied on th e witness sta nd and p rior to the trial. Therefore, I believe that Robert W. Hass ett 3rd was not given a fair trial. Because I lied on the witness stand, and I was not the only one threatened to give a false testimony on the witness stand. [sic] Everything th at I testified to regarding May 14, 2000 and the events that took place were lies, given to me by the police and Jim Adkins. I, Jason Coggin, have given this statement by my own free will, with the understanding of the perjury law. I swear this statement is the truth. Coggin does not recant anything. He does not specify how he lied. He merely says he lied. In order for this Court to consider undertaking an analysis as set forth in Blanken ship v. State, 447 A.2d 428 (De l. 1982) and to hold a hea ring as did th e Court in Weedo n v. State, Del. Super ., Def. ID# 93S 00177D I, Graves, J. (M arch 6, 200 1), Cogg in must sub mit a document that specifies every false statement he made, the "true" version of events, and what the prosecutor threatened. It flies in the face of judicial ec onomy and commo n sense fo r this Court to hold a hearing and perform an analysis based on Coggin's nebulous statements set forth above. The motion for new trial is denied. 4 2) Motion for Postconviction Relief2 I now turn to defendant's Rule 61 motion and individually address each ground defendant advances. a) Prosecutorial Misconduct Def endant's first ground for relief is prosecutorial misconduct. H e alleges that the following statements in the prosecutor's closing arguments constituted prosecutorial miscond uct: But he was in shock, ladies and gentlemen. But it wasn't the kind of shock where he would forget to get Sherri Hassett's car keys off of her body so he could get to his mom's house. It wasn't the kind of shock that he couldn't take Sherri's car and drive it up to Harrington. It wasn't the kind of shock that would make him want to go to a neighbor and report what his friend had done. It wasn't the k ind of sho ck that ma de him stop by a police station and just let them know. It wasn't the kind of shock that made him forget to drive back roadways because he didn 't hav e a dr iver's license. It wasn't the kind of shock that prevented him from thinking to hide the car in the bushes at the hog farm in Harrington out of sight of the road and miles from his mother's house that he was in a hurry to get to. It wasn't the kind of shock that made him forget to change his bloody clothes and leave them in his mom 's house, only to tell police later that he threw them away in some kind of trash container near where the car was back on the hog farm. It wasn't the kind of shock that, as the police were taking fingernail scrapings, he told them, "You are not going to get anything off of me. I never touched her." It wasn't that kind of shock, ladies and gentlemen. No objection to this statement was made at trial and it was not raised as an issue on 2 The Rule 61 motion is timely filed pursuant to Super. Ct. Crim. R. 61(i)(1), which provides: A motion for postconviction relief may not be filed more than three years 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 three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court. 5 appea l. This ground f or relief is proc edurally barred because it was not asserted in the proceedings leading to the judgment of conviction and defendant has not attempted to show cause for r elief from the p roce dura l def ault a nd prejudice from violation of defen dant's rights. Super. C t. Crim. R. 61(i)(3). 3 As an asid e, I note defendant cannot establish prejudice; the prosecuto r's statements are not subject to any legal attack. Furthermore, defendant cannot otherwise overcome the procedural bar because he has failed to (and cannot) show there was a miscarriage of justice because of a constitutional violation that undermined the fundamenta l lega lity, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. Super. Ct. Crim . R. 61(i)(5). 4 This ground fails. b) Trial Court Error Defe ndant a sserts tha t the trial c ourt erre d in a nu mber o f respe cts. 1) Jury Issue 3 In Super. Ct. Crim. R. 61(i)(3), it is provided: 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 In Super. Ct. Crim. R. 61(i)(5), it is provided: Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. 6 First, defendant argues the trial court erred in finding no prejudice occurred when the jury members discussed the case outside of the jury room without confronting the witness who a llegedly o verhea rd the m atter. Def endant's argument is not based on a correct recitation of the fac ts. In actuality, the following occurred regarding Juror No. 2. A court specta tor reported to trial counsel th at a member of Sherri Hassett's family possibly may have had an encounter with Juror No. 2. The court spectator left the courthouse. The Court questioned Juror No. 2 in Chambers regarding any possible encounter. Juror No. 2 told the Court that no one had had contact with her about the case. The Court was satisfied with her answe r. Since the spectator who made the report was not available, the Court instructed trial counsel that if he contacted the spectator who reported the possible contact and learned that the spectator had a different version from that of Juror No. 2, then the Court would question that court spectator. Trial counsel said he would follow up with the court spectator and clarify what it was that the co urt spectator saw, noting that the spectator could have been mistaken. Nothing more was placed on the record regarding the issue. No objection to the Court's findings was made nor were the Court's rulings regarding Juror No. 2 raised as issues on appeal. Th is ground f or relief is proc edurally barred because it was not asserted in the proceedings leading to the judgment of conviction and defendant has not attempted to show cause for relief from the procedural default and prejudice from violation of defen dant's rights. Su per. Ct. Crim. R. 61(i)(3). Furthermore, defendant cannot otherwise overcome the procedural bar because he has failed to show there was a miscarriage of justice because of a con stitutional vio latio n tha t und ermined the f undame ntal l egal ity, 7 relia bility, integ rity or fairness of the proceedings leading to the judgment of conviction. Super . Ct. Crim . R. 61(i) (5). This ground fails. 2) Chan ge in Cou nsel Requ ests Defendant's secon d arg ume nt is that th e tria l cou rt erred in denying d efen dant's motion s seekin g appo intmen t of ano ther trial a ttorney. Defendant did not raise th is issue on ap peal. This g round fo r relief is procedurally barred because it was not asserted in the proceedings leading to the judgment of conviction and defendant has not attempted to show cause for relief from the procedural default and prejudice from violation of defendant's rights. Super. Ct. Crim. R. 61(i)(3). Furthermore, defendant cannot otherwise overcome the procedural bar bec ause he has failed to sho w there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgm ent of c onvictio n. Sup er. Ct. C rim. R. 6 1(i)(5). This ground fails. 3) Denial of Co-counsel Def endant's third argum ent is that the trial cou rt abused its discretion in d enying his request for co-counsel given the n ature and c omplexity of the case. D efendan t did not raise this issue on appeal. This ground for relief is procedurally barred because it was not asserted in the proceedings leading to the judgment of convic tion and de fendant h as not attem pted to show cause for r elief from the proced ural defau lt and prejudic e fro m violati on of def endant's rights. Super. Ct. Crim. R. 61(i)(3). Furthermore, defendant cannot otherwise overcome the 8 procedural bar because he has failed to show there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. Super. Ct. Crim. R. 61(i)(5) . Even if defend ant overca me the pro cedural ba rs, the claim w ould fail. As explained in Riley v. State, 496 A .2d 997 , 1016 ( Del. 19 85), cert. den., 478 U.S. 1022 (1 986): Of the courts that have addressed the issue, there is near unanimity that the appointment of add itional co unsel ... for an indig ent criminal d efendan t is not a constitutionally protected right under federal or state law - absent a showing that such services are essential for an adequate defense.5 See State v. Zebroski, Del. Super., Def. ID# 9604017809, Silverman, J. (Aug. 31, 2001), aff'd , 822 A.2d 1038 (Del. 2003) (concluding there was no ineffective assistance of counsel where there was only one trial counsel in a capital murder case). Trial counsel in this case was an e xperience d, seasone d criminal d efense atto rney. The de fense, that C oggin and not defendant killed Sherri Hassett, w as simple. S ince defen dant cann ot show p rejudice, this claim f ails on its merits. This gr ound f ails. 4) Ruling on Prosec utor's Stateme nts Fourth, defenda nt argues the trial court abused its discretion in only granting a cautionary instruction regarding the prosecutor's implication in rebuttal that defendant 5 In Riley v. Taylor, 277 F.3d 261 (3rd Cir. 2001), the Third Circuit Court of Appeals directed the Delaware District Court to grant defendant Riley a writ of habeas corpus on grounds other than the argument Riley was entitled to the appointment of co-counsel. If fact, the Court held there was no constitutional violation in not appointing co-counsel. Id. at 306-07. 9 tailored his testim ony. Defendant raised this issue on appea l and it w as decid ed aga inst him . Hassett v. S tate, Del. Supr., No. 420, 2001, Steele, J. (May 15, 2002). Since it has been formerly adjudicated, this ground is procedurally barred unless reconsideration of the claim is warranted in the interest of justice. Super. Ct. Crim. R. 61 (i)(4).6 Defendant has not asserted any "interest of justice" ground nor does this C ourt discern one wh ich wou ld cause this C ourt to consider th is argum ent in lig ht of the proced ural bar . This ground fails. c) Police Misconduct Defendant asserts that the police committed misconduct in their investigation by acting under "the bad faith clause" and dismissing other evidence. He sp ecifies a s follow s. The police never conducted a proper investigation. There was more than one suspect. But, the po lice failed to investigate or perform and research to be su re that leads were reliable. The police received statements that contradicted one another. And instead of going by procedure. [sic] By taking all suspects' fingerprints and the clothing that the susp ects were wearing at the time of the interview. [sic] Police failed to obtain and test all of the evidence. *** The police went by a statement that has now been reca nted. (See: a ffidavit, Jason Coggin as: ex-A-1) The officers in charge of the evidence never took any Valuable evidence off of the other suspect. Such as fingerprints, fingernail, scrapings, hair samples etc.... In their tasks of collecting evidence the police 6 In Super. Ct. Crim. R. 61(i)(4), it is provided: 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, unless reconsideration of the claim is warranted in the interest of justice. 10 failed to secure any of this evidence to support and find the truth of fact. *** During the investigation, the police had a statement from the defendant that other suspect ha d comm itted the crime . ... and the police still did not look into this information. Defendant did not raise such complaints against the police officers in the proceedings leading to judgment and he has not sho wn wh y these comp laints should not be pro cedurally barred pursua nt to Ru le 61(i)(3 ). Slater v. State, Del. Supr., No. 164, 1994, Berger, J. (March 1, 1995). Furthermore, he has failed to set forth any reasons why exceptions to the procedural bars exist. This claim fails because it is procedurally barred. d) Ineffective Assistance of Counsel Defendant asserts that trial counsel was ineffective in a number of respects . Since this is the first time that defendant has had the opportunity to raise these arguments, they are not proced urally barr ed. Where a defendant makes a claim of ineffective assistance of counsel, he must show that counsel's erro rs were so grievous a s to fall below an objective standard of reasonableness and he must sh ow to a reasonab le degree of probability that but for counsel's unprofessional errors, actual p rejudice resulted . Strickland v. Washington, 466 U.S. 668 (1984). In addition, the allegations must be con crete; va gue an d conc lusory alle gations fail. Young er v. State, 580 A.2d 552, 555 (Del. 1990). 1) Mental health issues and drug issues Defendant argues that trial counsel failed to investigate or pursue defendant's mental health issues a nd that if he had , defendant might have been found not guilty or guilty of a 11 lesser charge based on defenses of extrem e emotion al distress, dimin ished men tal capacity or temporary insanity. He also argues that trial counsel failed to obtain the opinion of any drug expert prior to trial regarding the effects o f various d rugs and h ow those effects affected the d efen dant's psychological capac ity. These areas only would b e relevant if d efendan t had soug ht to reduce or excuse his culpability in Sherri Hassett's death. In order to invoke these defenses, defendant's trial testimony would h ave to have been completely different from what it was; he w ould have to have admitted that he had culpab ility in Sher ri Hass ett's death . Ross v. S tate, 768 A.2d 471 (Del. 2001) (raising an affirmative defense constitutes an admission of culpability in the death). These de fenses w ere not ava ilable to defe ndant in light of his trial testimony. Thus, defendant cannot show, based on his trial strategy and his testimony, that the outcome of his case would have been different had his trial attorney performed an investigation regarding his m enta l state and/or psycho logical capac ity. 2) Investigation of witnesses Defendant asserts that trial counsel failed to investigate or properly prepare for crossexamination in order to be able to pro perl y impeach witnesses. Defendant never specifies what it is that trial counse l would h ave learne d in such a n investigatio n and ho w that w ould have changed the outcome of the trial. Instead, what he d oes is subm it citations to transcript pages, questionnaires from several people, an unverified, unsworn statem ent from his mothe r, and an unverified, unsworn report from his mother's psychiatrist7 in support of vague 7 Defendant submitted this report from Mark S. Borer, M.D., his mother's psychiatrist. His mother thereafter requested that the Court seal this document. The document contains inadmissible hearsay and the information in it does not in any way advance 12 statements that no investigation was done. D efendan t leaves it to the C ourt to figure out what he is arguing. E stablishing ine ffective ass istance of c ounsel is not the Cou rt's re spon sibility; that responsibility lies w ith defend ant. Without specifying how trial counsel's investigation was not reasonable and how the outcome of the trial would have been different had trial counsel conducted an otherwise reasonable investigation, the vague assertio ns fail. Younger v. State, 580 A.2d at 555. This claim fails. 3) Failure to interview witness Defendant argues that tria l counsel failed to secure and interview the person who reported possible contact between Juror No. 2 and a member of Sherri Hassett's family. Defendant has not submitted any informatio n establishing that this court sp ectator actua lly saw contact. As a consequence, defendant cannot show that the outcome of the trial w ould have been anything other than what it was. He does not meet the Strickland standards, and this claim fails. 4) Meetings with defendant Defendant argues that tria l counsel on ly met with him three times a nd did no t fully discuss the facts of the case with him. He argues that had there been more meetings, a better defense other than the one that he was not g uilty would ha ve been p ursued. Th is ground f ails for vagueness beca use defendant d oes not specify what othe r defense he would have pursued. Young er v. State, supra. defendant's request for postconviction relief. Accordingly, the Court orders that this report by Dr. Borer be sealed and not be opened absent leave from this Court. 13 As an asid e, I speculate that based upon defendant's previous arguments, defendant is implying that he would have pursued a diminished capacity defense had he had more time with his attorney. That means that defendant would have to have adm itted he particip ated in causing the dea th of Sh erri Ha ssett. See Ross v. S tate, 768 A.2d. That position do es not in any way mesh with the defense he presented at trial. Defendant made a decision about what story he was going to tell. His trial counsel competently represented him in connection that defense. This ground fails. CONCLUSION For the foregoing reasons, the Court denies defendant's Rule 61 motion. IT IS SO ORDERED. Very truly yours, Richard F. Stokes cc: Prothonotary's Office James W. A dkins, Esquire Martin J. Cosgrov e, Esquire Thomas D.H. Barnett, Esquire 14
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