IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE )
)
v. ) I.D. No. 1102017217
)
LUIS RIVERA, )
)
Defendant. )
OPINION
Date Submitted: March 30, 2015
Date Decided: June 26, 2015
Upon Defendant’s Motion for Postconviction Relief: DENIED.
Robert J. O’Neill, Jr., Esquire, Deputy Attorney General, Delaware Department of
Justice, 820 N. French Street, Wilmington, DE 19801, Attorney for the State.
Richard J. Zemble, Esquire, 1220 N. Market Street, Suite 813, Wilmington, DE
19801, Attorney for Defendant.
JURDEN, P.J.
I. INTRODUCTION
Luis Rivera filed the instant Motion for Postconviction Relief pursuant to
Superior Court Criminal Rule 61 (“Rule 61”) alleging ineffective assistance of
counsel. For the following reasons, the Motion is DENIED.
II. BACKGROUND
On October 18, 2011, a jury convicted Luis Rivera (“Rivera”) of Trafficking
in Heroin 2.5–10 grams, Possession With Intent to Deliver Heroin, Maintaining a
Dwelling for Drug Purposes, Tampering With Physical Evidence, Possession of
Drug Paraphernalia, and Unlawful Dealing With a Child. 1 On February 3, 2012,
Rivera was sentenced to a total of 30 years at Level V, suspended after 9 years for
various levels of probation. 2
Rivera appealed the jury verdict arguing that the trial court erred in
admitting into evidence his video recorded statement to the police because he was
too intoxicated to knowingly and voluntarily waive his Miranda rights. 3 On
August 21, 2012, the Delaware Supreme Court affirmed the conviction finding that
Rivera’s claim had no merit and was waived because Rivera’s counsel was given
1
Rivera v. State, 2012 WL 3597225 (Del. 2012).
2
Sentencing Order, State v. Rivera, No. 1102017217 (Feb. 3, 2012) (D.I. 22).
3
Rivera, 2012 WL 3597225, ¶ 1.
2
the opportunity to present a motion to suppress before trial began, but counsel
declined. 4
On August 7, 2013, Rule 61 Counsel assisted Rivera in filing this motion for
postconviction relief pursuant to Rule 61 (“Rule 61 Motion”).5 Rivera asserts that
Trial Counsel’s failure to file a motion to suppress Rivera’s confession violated his
implied right to effective counsel.6 On March 21, 2014, Trial Counsel filed an
affidavit in response to allegations of ineffective assistance of counsel. 7
III. DISCUSSION
Rivera’s Rule 61 Motion was stayed from May 2, 2014, until January 26,
2015, because of an intervening motion for postconviction relief filed regarding
misconduct within the Office of the Medical Examiner. That intervening motion
was withdrawn by stipulation on January 26, 2015, and therefore, the Court is now
considering Rivera’s Rule 61 Motion filed on August 7, 2013. 8
Before addressing the merits of any claim for postconviction relief, the
Court must first determine whether any of the procedural bars under Rule 61 are
4
Id. ¶¶ 1, 6.
5
Motion for Post Conviction Relief Pursuant to Superior Court Rule 61, State v. Rivera, No.
1102017217 (Aug. 7, 2013) (D.I. 29) (“Def.’s Br.”).
6
Id. at 4–7.
7
Affidavit of John S. Edinger, Jr., Esquire, State v. Rivera, No. 1102017217 (Mar. 21, 2014)
(D.I. 36).
8
See Stipulation, State v. Rivera, No. 1102017217 (Jan. 26, 2015) (D.I. 42). The Court is
deciding this motion pursuant to the version of Rule 61 that was in effect on August 7, 2013, the
date the motion was filed.
3
applicable. 9 Rule 61(i)(1) provides that a motion for postconviction relief must be
filed within one year of a final judgment of conviction. 10 Under Rule 61(i)(2), any
ground not asserted in a prior postconviction proceeding is barred “unless
consideration of the claim is warranted in the interest of justice.” 11 Rule 61(i)(3)
bars consideration of any claim not asserted in the proceedings leading up to the
judgment of conviction unless the movant can show “cause for relief from the
procedural default” and “prejudice from violation of the movant’s rights.”12 Rule
61(i)(4) provides that any ground for relief that was formerly adjudicated is
thereafter barred “unless reconsideration of the claim is warranted in the interest of
judgment.” 13
Even if a procedural defect exists, the Court may consider the merits of the
claim if the Defendant can show that an exception found in Rule 61(i)(5) applies. 14
Rule 61(i)(5) provides that a defect under Rule 61(i)(1)–(3) will not bar 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.” 15
9
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
10
Super. Ct. Crim. R. 61(i)(1).
11
Super. Ct. Crim. R. 61(i)(2).
12
Super. Ct. Crim. R. 61(i)(3).
13
Super. Ct. Crim. R. 61(i)(4).
14
Super. Ct. Crim. R. 61(i)(5).
15
Id.
4
Rivera’s Rule 61 Motion is not procedurally barred. The motion was timely
filed and this is Rivera’s first opportunity to present an ineffective assistance of
counsel claim. 16
To prevail on a claim for ineffective assistance of counsel under Strickland
v. Washington, 17 a defendant must prove: (1) counsel’s representation fell below an
“objective standard of reasonableness;” and (2) counsel’s actions were prejudicial
to his defense, creating “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” 18
When the Court examines a claim of ineffective assistance of counsel, it may
address either prong first.19 When one prong is not met, the Court may reject the
defendant’s claim without analyzing the other prong. 20
The Strickland test is “highly demanding.” 21 Under the first prong of
Strickland, there is a “strong presumption that the representation was
professionally reasonable.” 22 In measuring counsel’s reasonableness, every effort
16
The Delaware Supreme Court affirmed Rivera’s conviction on August 21, 2012, and Rivera
filed the instant motion on August 7, 2013. See Rivera v. State, 2012 WL 3597225.
17
Strickland v. Washington, 466 U.S. 668 (1984).
18
Id. at 687–88, 694.
19
Id. at 697.
20
Id.
21
Fletcher v. State, 2006 WL 1237088, at *2 (Del. Super. 2006).
22
Stone v. State, 690 A.2d 924, 925 (Del. 1996) (quoting Flamer v. State, 585 A.2d 736, 753
(Del. 1990)).
5
must be made to eliminate the distorting effects of hindsight. 23 Instead, the court
must evaluate the conduct from counsel’s perspective at the time. 24
During his statement to the police, Rivera admitted to using about 13 or
more bags of heroin per day and that he used about 15 bags of heroin that
morning. 25 Prior to trial, Rivera filed his own motion to suppress his confession,
claiming he was incapable of giving a knowing and voluntary waiver of his
Miranda rights because he was under the influence of heroin. 26 Rivera’s motion
was forwarded to Trial Counsel, but Trial Counsel declined to file a motion to
suppress the statement because in his opinion, Rivera knowingly, intelligently, and
voluntarily waived his Miranda rights. 27 Rivera argues that Trial Counsel was
ineffective for failing to file a motion to suppress. 28
In the context of a motion to suppress, the State has the burden of proving by
a preponderance of the evidence that the defendant’s waiver of his Miranda rights
was knowing, intelligent, and voluntary. 29 Under Delaware law, “[v]oluntary
intoxication does not necessarily render a confession involuntary.” 30 Instead,
“[t]he use of drugs is just one factor the court must consider while looking at the
23
Strickland, 466 U.S. at 689.
24
Id.
25
Def.’s Br. app. at 14.
26
Def.’s Br. at 4–6.
27
Id. app. at B–1 to B–3. See also Aff. of Edinger at 3.
28
Def.’s Br. at 4.
29
State v. Caldwell, 2007 WL 1748663, ¶ 4 (Del. Super. 2007).
30
Shockley v. State, 2004 WL 1790198, ¶ 21 (Del. 2004) (ORDER) (citing Howard v. State, 458
A.2d 1180, 1183 (Del. 1983)).
6
totality of the circumstances to decide if a statement is ‘the product of an
essentially free and unconstrained choice.’” 31 The relevant inquiry is whether the
defendant “knew what he or she was doing and had a reasonable appreciation of
the nature and significance of his or her actions.” 32
Rivera contends that his physical symptoms during the interview indicate he
was too intoxicated to give a knowing and voluntary confession. 33 At the
beginning of the interview, the interviewing detective and police officer observed
Rivera coughing heavily. 34 When they inquired about the coughing, Rivera replied
that he smoked and had asthma. 35 The officer handed Rivera his inhaler to
alleviate the coughing. 36 The detective then read Rivera his Miranda rights.37
When the detective asked Rivera if he understood his rights, he responded,
“Yes,” 38 and Rivera signed a Miranda waiver form. 39 The detective then observed
Rivera shaking and asked if he had bad nerves, to which Rivera replied, “Yes. But
I don’t take no medicine for it.”40 The interviewing detective testified at trial that
31
State v. Pustolski, 2009 WL 10212727, at *7 (Del. Super. 2009) (quoting Caldwell, 2007 WL
1748663, ¶ 9).
32
Id.
33
Def.’s Br. at 5.
34
Def.’s Br. app. at 1.
35
Id.
36
Id.
37
Id. at 2.
38
Id.
39
Id. at 3.
40
Id. at 2.
7
Rivera did not appear to be under the influence of heroin at the time of the
interview. 41
Trial Counsel explained in his affidavit that he reviewed Rivera’s video
recorded statement to the police and disagreed with Rivera’s assessment of what
the interview reflected. 42 Trial Counsel determined that while the video recording
shows that Rivera is coughing, bent over, and breathing with difficulty, it did not
appear that he was in pain or shaking. 43 Further, Trial Counsel determined that
Rivera’s physical symptoms were caused by an asthma attack, not intoxication.44
According to Trial Counsel, Rivera’s demeanor in the interview was no different
than when Trial Counsel met with Rivera at the Howard R. Young Correctional
Facility and at various times in the courthouse prior to trial.45 Trial Counsel
considered whether Rivera was intoxicated during the interview; however, he
believed under the totality of the circumstances, that Rivera’s waiver was knowing,
intelligent, and voluntary, and that there was no good faith basis upon which to file
a motion to suppress the confession.46
After a thorough review of Rivera’s assertions, Trial Counsel’s affidavit, and
the record of the case, Rivera has failed to overcome the presumption that Trial
41
Transcript of Trial at 108, State v. Rivera, No. 1102017217 (Oct. 18, 2011) (D.I. 24).
42
Aff. of Edinger at 2.
43
Id.
44
Id.
45
Id.
46
Id. at 3.
8
Counsel’s decision not to file a motion to suppress was professionally reasonable.
Rivera voluntarily answered each of the detective’s and officer’s questions and did
not exhibit any other physical symptoms of possible intoxication except for the
physical symptoms that Trial Counsel concluded were caused by Rivera’s asthma.
Moreover, the record supports Trial Counsel’s determination that even if
Rivera was intoxicated, Rivera knew and appreciated the nature and significance of
his actions. For example, Rivera admitted during the interview that he did not
immediately open the door when he noticed the police officers at the door because
he had outstanding warrants for his arrest in Puerto Rico. 47 After he noticed the
police officers, Rivera locked the chain on the door and went to the back room and
told his son, “they’re going to lock me up, they’re going to lock me up.” 48 Rivera
further acknowledged that he does not sell heroin to children because he has a
child of his own.49 Finally, Rivera acknowledged that he is familiar with the
arresting process because he was arrested several times prior to the day of the
interview. 50
Rivera has failed to show that Trial Counsel’s actions fell below an objective
standard of reasonableness. Because Rivera cannot meet the first prong of
Strickland, the Court will not analyze the second prong of Strickland.
47
Def.’s Br. app. at 5.
48
Id. at 8.
49
Id. at 12.
50
Id. at 6.
9
IV. CONCLUSION
For the foregoing reasons, the Defendant’s Motion for Postconviction Relief
is DENIED.
IT IS SO ORDERED.
_____________________________
Jan R. Jurden, President Judge
10