Duross v. State

• Decision Date: 22 January 1985
• Citation: 494 A.2d 1265
• Parties: Donald DUROSS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 1265

494 A.2d 1265

Donald DUROSS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: Jan. 22, 1985.

Decided: June 13, 1985.

Upon appeal from convictions in the Superior Court. Affirmed.

Patricia C. Hannigan, Asst. Public Defender, Wilmington, for appellant.

Kevin O'Brien, Deputy Atty. Gen. (argued), and Alex J. Smalls, Deputy Atty. Gen., Dept. of Justice, Wilmington, for appellee.

Before HERRMANN, C.J., McNEILLY, HORSEY, MOORE and CHRISTIE, JJ., constituting the Court en Banc.

HORSEY, Justice:

We here consider the question of whether the decision of the United States Supreme Court in Strickland v. Washington 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requires a modification of our State's well-established rule that a claim of ineffective assistance of counsel will not be heard on direct or postconviction appeal, unless that claim had been raised below. We find that such established rule is not inconsistent with Strickland, and we decline to consider the defendant's claim on direct appeal. Accordingly, we affirm.

I.

Following a jury trial, the defendant, Donald Duross, was convicted in the Superior Court of unlawful delivery of methamphetamine, a controlled substance, in violation of 16 Del.C. § 4752. ¹ The defendant was sentenced to a minimum mandatory term of three years imprisonment.

The evidence at trial revealed the following:

The Delaware police were conducting an undercover investigation into the sale of controlled substances in the community of Knollwood, New Castle County. Through a confidential informant, the police learned that the defendant was selling methamphetamine from his home. An undercover officer and the informant went to the defendant's residence for the purpose of buying methamphetamine. The officer and confidential informant approached the defendant as he was finding his car. The informant introduced the defendant to the officer as "Duck." The informant asked to purchase some methamphetamine, and was instructed to go to the basement of the defendant's residence. Inside the defendant's residence, the undercover officer negotiated the sale with the defendant. Thereafter, the defendant left for several minutes, saying that he had to go to his brother's house to obtain the drugs. He returned, handing the drugs to the undercover officer. In the car, the officer conducted a field test and determined that the substance was methamphetamine. Several weeks later, another police officer arrested the defendant.

At trial, the State offered into evidence the testimony of the undercover officer who identified the defendant as the individual from whom he purchased the methamphetamine. The arresting officer also testified, identifying the defendant as the same man who he had arrested. Moreover, he stated that, at the time of his arrest, the defendant had said that he was also known by the name, "Duck."

The defense asserted that the police had mistaken the defendant for his brother, Larry, and that Larry Duross, not the defendant, had negotiated the sale. In support of this position, the defense recalled the arresting officer who testified to having arrested Larry Duross in the past for several drug offenses. He also stated that the defendant and his brother were close in age and of similar stature. As his only other witness, the defendant called to the stand his other brother, Kenneth Duross. Kenneth Duross testified that his brothers, Donald and Larry, occupied the same bedroom, were of similar age and build, and had been mistaken for one another in the past. Finally, Kenneth Duross testified that at the time of the alleged offense, his brother, Larry, had not been in prison.

To rebut this evidence, the State obtained certified copies of the bail and commitment records for Larry Duross. However, the Trial Judge refused to admit the records into evidence because they were unreliable, differing as to the date of the preliminary hearing. Nonetheless, both records did show that Larry Duross was incarcerated on the day in question. Then, the State called as a witness the Assistant Chief Presentence Officer. He had prepared a presentence report for Larry Duross. He testified that in the process of preparing his report, he had determined that Larry Duross was in prison at the time of the drug transaction. The State never moved to admit the presentence report. Prior to the testimony, the Trial Judge said that he hoped that the prison would send Larry Duross' prison record. Upon defense counsel's objection, the Trial Judge agreed that the testimony of the presentence officer would be stricken from the record if the prison record were not received. The prison record was never received; however, the testimony of the presentence officer was not stricken. A Justice of the Peace commitment form was received instead.

* * *

On direct appeal, the defendant, through newly-appointed counsel, seeks to reverse his convictions on either of two grounds: (1) that he was ineffectively represented at trial; or (2) that in admitting into evidence hearsay testimony concerning the incarceration of the defendant's brother, the Trial Court committed reversible error.

II.

As his principal ground of appeal, the defendant argues that he was denied effective assistance of counsel at trial because his counsel failed to adequately investigate his assertion that his brother, not he, committed the offense and that the arresting officer misidentified him.

However, the defendant concedes that Delaware law is well-settled that, on direct appeal, this Court will not hear any claims of ineffective assistance of counsel, which were not raised below. Harris v. State, Del.Supr., 293 A.2d 291, 293 (1972). See also Collins v. State, Del.Supr., 420 A.2d 170, 177 (1980); Preston v. State, Del.Supr., 306 A.2d 712, 716 (1973); Robinson v. State, Del.Supr., 305 A.2d 307, 308 (1973). The rationale for this rule arises from the reviewing Court's need to have before it a complete record on the question of counsel's alleged incompetency, as determined in an evidentiary hearing. Moreover, were a reviewing Court to consider the question without an evidentiary hearing, trial counsel would have neither an opportunity to be heard, nor the chance to defend himself against such charge of incompetency. Harris v. State, 293 A.2d at 293.

The defendant argues, however, that Strickland has rendered superfluous the requirement of an evidentiary hearing. We disagree.

We turn to a close examination of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. In a Florida trial court, the defendant was convicted on three counts of murder and sentenced to death on each count. The Florida Supreme Court affirmed the convictions. Thereafter, the defendant sought collateral relief in state court, claiming ineffective assistance of counsel, among other grounds. The trial court did not hold an evidentiary hearing because it found "that the record evidence conclusively showed that the ineffectiveness claim was meritless." Strickland, 466 U.S. at ----, 104 S.Ct. at 2058. However, the trial court did make specific findings of fact outlining the reasons why it found such claim meritless. The Florida Supreme Court affirmed the denial of postconviction relief.

The defendant then filed a petition for a writ of habeas corpus in the United States District Court. The District Court conducted an evidentiary hearing into trial counsel's alleged incompetence. The District Court did not dispute the state court findings. The Court made new findings consistent with those previously noted by the state court and denied the defendant's petition. On appeal, the United States Court of Appeals for the Fifth Circuit affirmed in part and remanded for a new fact-finding consistent with the new standards for evaluating ineffectiveness claims, which it set forth in its opinion. Officials of the State of Florida filed a petition for a writ of certiorari in the United States Supreme Court. The Supreme Court granted such petition to address for the first time a claim of actual ineffective assistance of counsel.

The Supreme Court set forth guidelines for evaluating such claims, but noted that in applying such standards a reviewing court must be highly deferential to counsel's judgments, carefully considering the facts of each case as they appeared at the time of trial. Strickland, 466 U.S. at ----, 104 S.Ct. at 2066. The Court continued, that in evaluating counsel's strategic choices:

[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information.... In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions. [Citation omitted.]

Id. at ----, 104 S.Ct. at 2067.

Unless the claim of ineffective assistance of counsel has been raised at trial, the record on direct appeal seldom contains the kind of information, outlined above, which a reviewing court must have before it in order to adequately and fairly consider such claims. Therefore, the only avenue by which a reviewing court may delve into counsel's strategic choices is through an evidentiary hearing pursuant to a postconviction proceeding. Thus, the rationale of Strickland supports the well-established rule of Harris and its progeny.

To the contrary, the defendant relies on certain language from Strickland to support his contention that his claim may be heard on direct appeal in the absence of an evidentiary hearing. In Strickland, on the facts before it, ...