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dismissing conclusory allegation of perjury "without further discussion of the merits or any procedural bar."
Summary of this case from State v. MillsOpinion
ID No. 9911018706(R-1).
October 5, 2005.
Leo J. Ramunno, Esquire, Wilmington, DE.
James W. Adkins, Esquire, Department of Justice, Georgetown, DE.
Dear Mr. Reed:
On July 8, 2004, the Defendant Ralph Reed ("Defendant") filed his first Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). He then filed several more pro se amendments or supplements. Defense counsel entered his appearance and participated in the evidentiary hearing and briefing. This is the Court's decision denying Defendant's application.
FACTUAL BACKGROUND
On May 16, 2002, the jury found Ralph Reed guilty of murder in the first degree and possession of a firearm during the commission of a felony. The defense filed a timely motion for new trial. Resolution of that motion was delayed because transcripts were required to address the issues presented to the Court. Those issues concerned 11 Del. C. § 3507, limiting instructions concerning hearsay testimony, and the application of Delaware Rules of Evidence 404(b) ("D.R.E.") as to the conduct of Defendant. On December 19, 2000, the Court denied the defense's motion for a new trial. State v. Reed, 2000 WL 33179685 (Del.Super.). On Defendant's direct appeal to the Delaware Supreme Court, his conviction was affirmed. Reed v. State, 782 A.2d 266 (Del. 2001).
After Defendant finished filing his supplemental motions, the Court directed that the record be supplemented pursuant to Rule 61(g). The Court then determined an evidentiary hearing was appropriate. This took place on March 3, 2005 and April 8, 2005. Briefing was concluded on August 25, 2005.
As to the claims, it is necessary for the Court first to consider any procedural bars as contained in Rule 61(g). Younger v. State, 580 A.2d 552 (Del. 1990). This will be done on a claim-by-claim basis.
As to claims of ineffective assistance of counsel and to any claims that ineffective assistance of counsel was the "cause" of any failure to timely present a claim under Rule 61(i)(3), Defendant must establish that trial counsel committed error, i.e., his performance fell below an objective standard of reasonableness. He also must establish that the error by counsel actually caused him prejudice. The failure to prove either of these two prongs will result in the failure of the ineffective counsel claim or the failure to show "cause" under Rule 61(i)(3). Strickland v. Washington, 466 U.S. 668 (1984).
GROUND 1
Defendant makes a conclusory allegation that there was insufficient probable cause to arrest him. He complains that the State did not conduct an unbiased investigation, but targeted him based upon unreliable witnesses. He makes conclusory allegations that the police filed false police reports. In a supplemental filing, Defendant alleges that his trial attorney was ineffective for not attacking the probable cause affidavits based on the police failure to find the murder weapon and failure to conduct a paraffin test on him. This is nothing more than his conclusory allegations and opinions. There is no evidence presented to support these allocations. These conclusory claims fail. Dawson v. State, 673 A.2d 1186 (Del. 1996).
Defendant's conviction was not based upon a probable cause affidavit leading to his arrest, but based upon the testimony and evidence presented during his trial. There is no basis to conclude an illegal or unconstitutional arrest occurred. There is no basis to conclude his attorney should have filed any motion based upon a lack of probable cause for the arrest of Defendant. This claim is denied.
GROUND 2
Defendant alleges that his Miranda rights were violated and that his statements should have been suppressed. A suppression motion was filed by the defense, heard by the Court, and denied on May 3, 2000. The suppression motion was not based on Miranda or the involuntariness of the statements. The defense desired to suppress Defendant's statements alleging the police inaccurately reported what Defendant told them. I ruled that this claim was not one of constitutional import, but was an issue of credibility for the jury to decide. The present claim alleges the same statement should be suppressed on a different theory, a violation of his constitutional rights under Miranda. It is barred pursuant to Superior Court Rule 61(i)(3).
Miranda v. Arizona, 384 U.S. 436 (1966).
There has been no reason put forth as to why this claim was not presented to the trial court and/or the Supreme Court, except for supplemental filings claiming ineffective assistance of counsel. Defendant's argument is counsel was ineffective for not attacking the alibi statement that was given to the police while in a motor vehicle following a taped statement he gave at the police station. I conclude counsel was not ineffective.
At the police station, Defendant gave a short statement after being advised of his Miranda rights and voluntarily waiving same. The police station statement was tape-recorded. Immediately thereafter, a conversation took place in the car when Defendant was being transported. Defendant never invoked Miranda. The conversation included Defendant's alibi of being at his grandmother's house. When offered the opportunity to go back and tape record what he said while in the vehicle, he declined. Because he declined, Defendant believes the use of what he told the police in the automobile was a violation of his Miranda rights. Apparently, he believes his statement must be tape recorded in order to comply with Miranda.
Defendant is simply wrong. His attorney was not ineffective for not filing a Motion to Suppress on these grounds. Therefore, there is no cause as to why it was not presented to the trial court and is barred under Rule 61(i)(3). It also is denied as there is no legal basis to the claim on its merits per the above discussion and, therefore, there can be no prejudice. The Court heard, at trial, the testimony as to the circumstances surrounding this statement. It would not have been suppressed. This claim is denied.
GROUND 3
Defendant argues that his conviction of possession of a firearm during the commission of a felony should have merged with his conviction of murder in the 1st degree.
This claim is procedurally barred under Rule 61(i)(3) as Defendant has not shown why this claim was not presented to the trial court or the Supreme Court, nor has he shown the necessary prejudice.
A murder can be committed by a variety of different methods. When one uses a firearm to commit a murder, robbery or other felony, the legislature has determined that to be a separate crime. There are no merger or double jeopardy issues at all. To the extent Defendant alleges ineffective counsel, counsel could not be ineffective for not raising this frivolous claim. Therefore, Defendant has not provided cause for not timely presenting this claim, nor has he established prejudice. Substantively, it fails as there is no merit to the claim per the above discussion. It is denied.
GROUND 4
Defendant alleges his attorney was ineffective for not making a better Batson challenge to a peremptory challenge of the State of Delaware ("the State") to a black juror.
Batson v. Kentucky, 476 U.S. 79 (1986) ("Batson").
Defendant also argues that his trial counsel did not object to the Court's decision to keep a white juror under similar factual circumstances.
These accusations are directed not only at trial counsel but also at this Court's rulings. The transcript adequately addresses these allegations.
MRS. TURNER
Mrs. Turner, an African-American, reported during voir dire that she recognized the name of Darren Bacon, one of the witnesses. She said she worked at the DuPont plant and his mother also worked there. She said her son was a friend of Darren Bacon. She reported the aforementioned would not cause her any problems and that she could be a fair and impartial juror. She was kept on the panel. The State later asked the Court to conduct further voir dire and I later agreed to revisit Ms. Turner and further explore the State's concerns. She reported that she was not a friend of Mr. Bacon's mother, but knew her because she worked at the DuPont plant. She worked a different shift.
I neglected to further explore any relationship between her son and Mr. Bacon, nor did the State and defense suggest further questions. But, she was asked, "Would you be uncomfortable being on a case where you have to determine the credibility of her son one way or the other?" She said, "No". She was told that this jury would need to decide, as between different witnesses, who was more or less credible. She said she could do this fairly and impartially. Again, she was kept on the panel.
Later the State used a peremptory challenge as to this juror. There was no defense objection. A jury was selected.
Two days later, defense counsel objected to the State's use of its peremptory strike as to Mrs. Turner, complaining that she was African-American.
The Court noted that it was not surprised that the State struck her. While she reported she could be a fair and impartial juror, she did know Darren Bacon's mother and she reported Mr. Bacon and her son were friends.
I noted that I did not think a Batson challenge had been triggered based on the State's exercise of their challenge against Mrs. Turner. Nevertheless, as is my practice, I gave the State the opportunity to put on the record their race-neutral reason for striking her.
The State reported that Darren Bacon would be a controversial witness and he was expected to be hostile to the State. He was a friend of the Defendant's and was selling drugs with him on the night of the homicide. The State believed they would be attacking his credibility and therefore opposed Mrs. Turner, who had the aforementioned connection to Ms. Bacon. I accepted this and found nothing improper with the State's explanation.
Therefore, Defendant's present complaint was directly addressed by this Court and the analysis required by Batson and Riley v. Taylor, 277 F. 3d 261 (3rd Cir. 2001) was conducted. Since there was an adjudication on this issue, Rule 61(i)(4) bars this complaint. Based on the above discussion, there is no reason to revisit this further in the interest of justice. I also note that there was an opportunity to have the Supreme Court review the aforementioned ruling but this was not presented to the Supreme Court. Therefore, Rule 61(i)(3) procedurally bars it. The only cause or excuse for not raising this on appeal is the implicit accusation that it was the fault of appellate counsel. Given the discussion above, I find that appellate counsel was not ineffective for not raising this issue. Therefore "cause" has not been shown. Nor has Defendant shown any prejudice.
Finally, to the extent another Court determines the claim should not be procedurally barred, the above discussion directly addresses the merits of this claim. The claim is denied.
ADDITIONAL CLAIMS OF UNFAIRNESS
Defendant alleges that the Court's treatment of Mrs. Turner and a similarly situated white juror proves his claim of unfair prejudice by the State and the Court.
The problem with Defendant's allegations and argument is that the jurors were not factually similarly situated.
MR. HALLEY
Mr. Halley was selected as a juror. On the second day of the trial, he reported he recognized a person watching the trial. That person was not a witness. It was learned that he was the brother of the victim.
Mr. Halley further reported that he recognized the person as someone who had worked in asbestos abatement for a sub-contractor at the Indian River Power Plant. He said to the Court, "I know him to say hi. I thought I ought to make you aware."
This juror followed the Court's instructions that if a juror recognized anyone, they should let the Court know. He then was extensively voir dired, and was asked the question, "If you met this person at the job or plant and you determined that a verdict should be not guilty, would this cause you any trouble?" He answered, "Not at all".
There is nothing in the record to support Defendant's allegations that this juror was a "friend" of the victim's brother, nor can this be inferred.
There was no objection by the defense and I kept the juror on the panel.
The Court determined both Mrs. Turner and Mr. Halley were qualified to be jurors. The Court made this decision after questioning each and observing their respective demeanors. The Court was satisfied they each could be fair and impartial jurors.
Ultimately, Mrs. Turner did not serve because of the State's decision to use its peremptory challenge as discussed above.
There is no merit to the claims that the State and the Court prejudiced him by allowing a white juror to remain on the panel while excluding a similarly situated African-American juror. This claim is denied.
GROUND 5
In this ground, Defendant makes a conclusory allegation that the detective involved in the investigation committed perjury as to the testimony concerning Ground Two, Defendant's statement. As this is merely a conclusory allegation, it is dismissed without further discussion of the merits or any procedural bar.
GROUND 6
In Ground 6, Defendant alleges the Court failed to conduct a complete analysis of the admissibility of his prior use of a firearm under D.R.E 404(b). Defendant is mistaken. The Court issued an oral decision and then subsequently addressed the same issue in the December 19, 2000 decision addressing Defendant's Motion for a New Trial. This was also one of the grounds cited in the appeal, and the Supreme Court affirmed the conviction. Therefore, this ground is denied as it has been previously adjudicated and it is procedurally barred. Rule 61(i) (4).
GROUND 7
Ground 7 is a repeat of Ground 6, but it also includes Defendant's complaint that prior illegal drug activity should not have been admitted under D.R.E. 404(b). This complaint also was previously adjudicated as noted in Ground 6. Therefore, it is denied.
GROUND 8
The tenor of Ground 8 is an attack on the Court's ruling concerning whether or not certain hearsay testimony would be admissible only for impeachment or for consideration as substantive evidence under 11 Del. C. § 3507. It also attacks the Court's instructions as to this testimony. These issues were raised in the Motion for New Trial and rejected in this Court's decision of December 19, 2000. They likewise were rejected by the Delaware Supreme Court when the Supreme Court affirmed this Court's rulings. Therefore, this ground is procedurally barred by way of former adjudication under Rule 61(i)(4).
GROUND 9
There is no complaint contained in Ground 9. Defendant merely discusses the substantive law as to ineffective assistance of counsel, relying upon Strickland v. Washington, 466 U.S. 668 (1984). Defendant acknowledges that he must establish not only that his attorney's performance fell below an objective standard of reasonableness, but also that he was prejudiced by his attorney's ineffective representation.
GROUND 10
Defendant alleges his attorney was ineffective for not aggressively challenging the lack of probable cause for his arrest. He complains he was arrested without a weapon and that the State's primary eyewitness was drunk. Probable cause for his arrest was based on witnesses identifying him as the shooter.
Probable cause was found by a Judge following Defendant's preliminary hearing. Therefore, by requesting a preliminary hearing, defense counsel did challenge the probable cause for the murder charge. Defense counsel was not ineffective. Nor has Defendant shown any prejudice as the standard of proof for his conviction was "beyond a reasonable doubt". This claim is denied.
GROUND 11
In Ground 11, Defendant alleges his attorney was ineffective for not challenging or objecting to the alleged statements he made which were not tape recorded. (See Ground 2). For the same reasons stated in Ground 2, I find counsel was not ineffective. This claim is denied.
GROUND 12
Defendant claims his attorney was ineffective for failing to argue that Count 1, the murder charge, and Count 2, the firearm charge, should have merged. This double jeopardy argument was addressed in Ground 3. For the reasons stated therein, I do not find trial counsel to have been ineffective. This claim is denied.
GROUND 13
In Ground 13, Defendant claims his attorney was ineffective for not making a Batson challenge when an African-American was removed from the jury. This complaint is discussed in Ground 4, and for the reasons therein, I do not find counsel was ineffective. This claim is denied.
GROUND 14
In Ground 14, Defendant alleges that his trial attorney was ineffective for not requesting an instruction for a lesser included offense based upon the reckless causation of death. Defendant states the jury would have realized ". . . that this shooting was at best a lucky shot or in this matter an unlucky shot as the defendant is an untrained inexperienced shooter . . .".
This claim is factually incorrect in that defense counsel requested an instruction of Murder in the second degree based upon the reckless causation of death as opposed to the intentional causation of death. Murder in the second degree was given as a lesser included offense. There is no basis for this claim and it is denied.
SUPPLEMENTAL MOTIONS
In each of the supplemental motions, Defendant starts over with a Ground One, Ground Two, etc. Also, some claims are identical to previously made claims. Therefore, the numbers for the following claims have been assigned by the Court. Any claim that is the same as a previously considered claim is not being included, unless the new argument warrants consideration by the Court.
GROUND 15
Defendant alleges trial counsel was ineffective in not making objections to the Court's instructions. Defendant revisits his claims concerning the Court's limiting instructions to the jury based upon whether or not a basis had been laid for use of the hearsay evidence substantively under 11 Del. C. § 3507, or whether the hearsay evidence was to be used for determination of credibility. The merits of this claim were deemed procedurally barred in Ground 8. This is the ineffective assistance of counsel claim.
Following the shooting, Kenyon Horsey drove Sharnelle West to her residence in Seaford. He testified as to her statements while in the vehicle or at Seaford.
Kenyon Horsey testified that Ms. West kept repeating words to the effect that she could not believe he (Ralph Reed) shot the man. Mr. Horsey's testimony followed Ms. West's testimony and her denial of making such statements. The State did not lay an 11Del. C. § 3507 foundation and advised that Mr. Horsey's testimony was for purposes of attacking Ms. West's credibility. The jury was instructed to use it for credibility purposes only. Later, when Ms. West was back on the witness stand, she remembered making these statements but inferred they were made more in the context that she did not believe Ralph Reed was the shooter. Since she testified to this, the Kenyon hearsay as to same became, to a degree, moot. This is an example of the fluid nature of how evidence is presented to the jury, especially when a witness denies making a statement and then later recalls making the statement.
I do not find that trial counsel was ineffective for not objecting to the Court's instructions. The need for instructing the jury during the trial was discussed fully with the attorneys. Nor can there be prejudice as the Supreme Court affirmed this Court's rulings.
This claim is denied.
GROUND 16 Jerome Reed
Defendant alleges that defense counsel did not interview Jerome Reed, nor call him as a witness at trial. He states he gave trial counsel Jerome Reed's name as a witness for the defense. He supplies an affidavit of Jerome Reed which states that the State's eyewitness (Yvonne DeShields), who testified she saw the Defendant shoot the victim, was actually one of the culprits involved in the shooting. It alleges Kenyon Horsey and Yvonne DeShields committed the offense.
Trial counsel testified he did not get Jerome Reed's name. He was supplied two other names and interviewed those individuals. Defendant reported to counsel they would testify that Mr. Horsey did the shooting. Trial counsel reports that "On May 15th, in the cell area I questioned Travis Johnson and Wise and neither of them said they knew who killed the victim". He also noted that eight other potential defense witnesses had been interviewed.
Defense counsel also reported that when Defendant testified, it was contrary to what he told the police and what he had told his own defense attorney earlier. Prior to trial, Defendant reported to his attorney that he had not been at the scene and that he had an alibi. This is consistent with what he told the police. Defendant was fully aware of his alibi defense as he was present at his preliminary hearing when the police testified about the alibi Defendant gave them, and he was present, when, in the defense opening statement, defense counsel informed the jury of the alibi.
At trial, after hearing the State's case against him, he testified that he was at the scene of the shooting. He said it was Mr. Horsey who shot the victim, not him.
At the Rule 61 evidentiary hearing, Defendant initially stated he gave Mr. Haller the name of Jerome Reed. But on cross-examination, he admitted he did not have Jerome Reed's name until he received Mr. Reed's affidavit last year at Delaware Correctional Center ("DCC"). He said he did tell him "Jerome" or "Jay".
I do not find Defendant credible as to his testimony on providing the names "Jerome" or "Jay" to trial counsel. I find Jerome Reed's testimony and affidavit to be creations of Defendant. Furthermore, even if the names of "Jerome" or "Jay" were given to trial counsel, I find that trial counsel was not ineffective for not locating or interviewing "Jerome" or "Jay". Trial counsel and/or his investigator conducted a reasonable investigation based on the names and information Defendant provided.
Keshawn Hopkins (a/k/a Banks)
Keshawn Jefferson testified that he was dropped off at Little Creek Apartments, where he lives, at approximately 10:30 on the night of the shooting. He had been visiting his daughter, and his cousin Keshawn Hopkins brought him home.
He reported that he saw Defendant standing next to the Bronco. He went to his apartment, heard shots and ran back to see what happened. He saw Defendant with his arm extended out towards the Bronco. The Bronco then ran up onto the sidewalk and into a house. He did not see a gun, but Defendant was standing in the same place that he had been when talking to the person (the victim) in the Bronco.
In the Rule 61 supplemental motion, Defendant says he gave trial counsel the name of Keshawn Hopkins (Banks). He further alleges Mr. Hopkins would have contradicted the above testimony by Keshawn Jefferson. Trial counsel testified he did not recall receiving the name of Mr. Hopkins.
Defendant does not offer an affidavit of Mr. Hopkins, nor did Defendant call Mr. Hopkins to testify at the evidentiary hearing. At trial, Keshawn Jefferson testified he was not in a car at the time of the shooting as the Rule 61 allegations infer. He said he was dropped off by Keshawn Hopkins, who was gone by the time the shooting started.
Defendant has failed to provide any evidence to support his claim that Keshawn Hopkins (Banks) would have been a helpful witness. This claim fails as Defendant cannot show any prejudice. There is no proof Keshawn Hopkins (Banks) would have contradicted this testimony. Since there is no prejudice, this claim of ineffective assistance of counsel is denied.
GROUND 17
Defendant alleges that his attorney was ineffective for failing to move for a judgment of acquittal at the conclusion of the State's case. Based upon the evidence presented in the State's case-in-chief, it was not unreasonable for trial counsel not to make a motion which, obviously, would have been denied. In the State's case-in-chief, there were three eyewitnesses who testified Defendant was the shooter. Defendant has failed to establish a deficiency in trial counsel's performance which caused Defendant prejudice. This claim is denied.
GROUND 18
In this attack, Defendant does not allege anything new but argues that the cumulative effect of all the previously discussed complaints produced an unfair trial. Since I have not agreed with Defendant as to his earlier allegations, there is no cumulative effect to be considered, and this claim is denied.
DEFENDANT'S SECOND SUPPLEMENTAL MOTION GROUND 19
In this filing, Defendant argues that trial counsel was ineffective in his examination of Sharnelle West because "he opened the door" to incriminating testimony by Ms. West. He replows old ground, but it shall still be considered as an ineffective assistance of counsel claim.
Defendant argues that although Kenyon Horsey testified that Ms. West told him she could not believe Ralph shot that man, the State could not use this as substantive evidence under 11 Del. C. § 3507 because she denied ever making the statement. Defendant complains that in a subsequent examination by his attorney, she recalled making the statement, thereby "opening the door" for the State's substantive use of Ms. West's comments.
I do not find that trial counsel committed error in his questioning of Ms. West, nor do I find Defendant has shown any prejudice as is necessary under Strickland to prove ineffective assistance of counsel.
Further background information is necessary to understand the relationship between this testimony and 11 Del. C. § 3507 and limitations on the use of the testimony.
Ms. West was a friend of Defendant. Her pertinent testimony may be summarized as follows. She was "hanging out" with Defendant, Darren Bacon and Marshika Williams on the evening of the homicide. They were at or near a green utility box located near the entrance to Little Creek Apartments. She said Ralph walked toward a truck at the entrance to Little Creek Apartments. She heard shots, but did not see who did the shooting. She said she did not look because "I didn't want to, I guess". Later she caught a ride with Kenyon Horsey to Seaford. She denied telling Mr. Horsey she could not believe Ralph shot that man. The State did not lay a § 3507 foundation and reported the State's intent only to use any contradictory testimony from Mr. Horsey for impeachment.
The State later presented Mr. Horsey who testified that Ms. West kept repeating she could not believe Ralph had shot the man.
This ultimately resulted in an instruction during trial as to the use of certain testimony by the jury under § 3507 and the limited use of certain testimony as to how it may impact on the witnesses' credibility. The Court's ruling was the subject of a post-trial decision denying a new trial, which the Supreme Court affirmed.
While the State called Ms. West, she was, in reality, a defense witness. She was a reluctant witness whose only inculpatory testimony placed him at the truck. She was subject to vigorous examination about her relationship with Defendant and what she saw, what she did not see, and what there was to be seen, but not seen. There was direct, cross, redirect, recross, etc. On further examination, which came two days after her initial testimony, in response to a question by Mr. Haller, she remembered she told Mr. Horsey she could not believe Ralph shot the man, but the inference was a statement that she did not believe he did it. She said she did not see who did it but heard it might have been Ralph and therefore the context of her statement to Horsey was that she did not believe it.
From all of the above, it is an understatement to conclude that Ms. West was a puzzling witness for both the State and defense. Her testimony and the reasonable inferences therefrom helped and hurt both the State and the defense. The fact that the witness initially denied or failed to recall the comment to Mr. Horsey is not something under trial counsel's control, nor can he be blamed for her subsequent recollection that she did make the comments. To the extent her credibility had been attacked, her subsequent recollection of the comment and explanation was to Defendant's benefit. Defendant has not shown the explanation by Ms. West was inculpatory. His choice to hang his guilty verdict on this witness as opposed to three eyewitnesses is misplaced.
Defendant has not established that his trial counsel, in the heat of battle and in cross-examining a complex and sometimes contradictory witness, did anything wrong. Strickland teaches us to avoid "Monday morning quarterbacking". Therefore, I do not find that trial counsel committed an objective Strickland error by asking her what she told Mr. Horsey and why. Nor do I find any prejudice. Although she then confirmed she did have the conversation with Mr. Horsey, she explained it. So, to the extent that testimony then became substantive testimony, she told the jury the basis for the statement. This claim is denied.
GROUND 20 LOST CHANCE
Defendant testified that he was selling drugs with Kenyon Horsey. They took turns selling drugs to people who drove up to the Little Creek Apartments' entrance, a known drug market. Defendant said it was Mr. Horsey who went up to the victim's car, did the deal, and then shot the victim. He was the only person who testified Mr. Horsey was at the scene of the shooting. Everyone else testified the other male participating in drug sales was Mr. Bacon. Even Mr. Bacon testified to this.
Nevertheless, Defendant argues, based on his testimony, that there exists circumstantial evidence that Mr. Horsey and he were co-conspirators in the sale of illegal drugs. As a co-conspirator, he might be guilty of the murder committed by his co-conspirator, Mr. Horsey, but his attorney never offered such an alternative theory of accomplice liability to the Court. Furthermore, such a theory would have required the jury to focus on his culpable mental state to determine the degree of murder. Chance v. State, 685 A.2d 351 (Del.Super.Ct. 1996). He alleges his attorney's ineffectiveness caused him to lose his chance for a Chance instruction.
This is an interesting theoretical allegation. Having first told his attorneys he was not present at the scene at all, and then testifying he was nearby but not involved in the shooting at all, he now wants to argue his attorney should have argued he was not the shooter, but could have been guilty as an accomplice to Mr. Horsey.
This argument ignores the entire theory of the State's case, which was that Mr. Reed was the shooter. If the jury determined Mr. Reed was not the shooter, then he was "not guilty". There was no possibility of a conviction as an accomplice.
This argument is also a classic case of "Monday morning quarterbacking". Defendant argues that his attorney should have called another "play". I do not find that trial counsel committed error or missed an opportunity to obtain a Chance instruction. Even had he raised this theory, under the evidence as presented, it would not have been appropriate to give a Chance instruction. Finally, the jury, having been given the opportunity of murder first, murder second, or not guilty in considering Defendant's conduct, determined he was guilty of murder in the first degree. The jury considered Defendant's guilt based on his culpable state of mind. There is no prejudice. This ground is denied.
GROUND 21
Defendant argues that the State violated Brady v. Maryland, 373 U.S. 83 (1963) with regard to Kenyon Horsey. After Mr. Horsey testified on direct examination, the prosecutor informed the Court and defense counsel that the witness was told to tell the truth and to the extent the witness was involved with criminal activity (drugs and guns), he would not be prosecuted. Defendant argues this was a Brady violation concerning the State's primary witness.
Regardless of the timing of the State's report, it came prior to cross-examination. The defense was aware of this as well as D.R.E. 609 evidence as to this witness. Defendant can show no prejudice, even if disclosure may have come late. Having shown no prejudice, this ground is denied.
THIRD SUPPLEMENTAL FILING GROUND 22
Defendant makes several claims of ineffective cross-examination by trial counsel.
Defendant alleges that if trial counsel had pursued the information contained in Jerome Reed's affidavit filed in Defendant's first supplement to this Rule 61 petition, he would have had ammunition to attack the credibility of the State's primary witnesses. This complaint fails based on this Court's findings in Ground 16 as to Jerome Reed and Ralph Reed. It is denied.
Defendant complains that there was not effective examination of Yvonne DeShields and Sarah Handy because there existed potential inconsistences in their testimony that trial counsel did not exploit. Ms. DeShields testified that one of the people near Defendant at the time of the shooting was named "Sarah". Since Sarah Hardy testified she was at her window when she saw Defendant, one of them must be wrong.
Trial counsel was not ineffective for not fully exploiting this inconsistency which Defendant argues could have shown to the jury that Yvonne DeShields was untruthful about seeing him shoot the victim.
In any trial, the evidence comes to the jury witness by witness. During this necessary piecemeal process, it is difficult for anyone to keep track of every single potential inconsistency or conflict.
Strickland warns reviewing judges to consider the entire case when considering specific complaints of ineffective counsel and to evaluate what counsel did or did not do from counsel's shoes while he or she is engaged in the battle.
I am satisfied that trial counsel's examination of these witnesses was reasonably effective. Defendant is entitled to counsel whose preparation and skills result in a reasonably reliable adversarial trial. In the heat of battle, trial counsel are entitled to wide latitude in how cross-examination may be conducted. Since the jury heard the above inconsistency, I do not find trial counsel committed objective error for not exploiting this as Defendant would now like him to have done.
For the same reason, the Defendant cannot and does not prove any prejudice even if trial counsel committed error. The jury heard the inconsistency and was instructed to consider all the evidence in determining credibility. This claim is denied.
GROUND 23
An issue on appeal was the use of Kenyon Horsey's testimony and Ms. West's testimony for both substantive and credibility purposes and the interpretation of 11 Del. C. § 3507.
Defendant now argues that had trial counsel not intentionally elicited from Ms. West testimony that she remembered telling Mr. Horsey "I don't believe he did it", then he would have had better reasons to attack the trial court's rulings on appeal, which would have resulted in a reversal by the Supreme Court.
The Defendant's attempt to use his claim of ineffective assistance at trial as a bridge to build an ineffective assistance of counsel claim on appeal fails because the initial claim was rejected in Ground 19 of this decision.
This claim is denied.
Finally, as to the Rule 61 portion of this decision where the claim is procedurally barred, I have considered the "escape" provisions of this Rule. I do not find the claims should be considered despite the bar either in the interest of justice or under the fundamental fairness exception of Rule 61(i)(5). Nor have I found any of the allegations to warrant consideration as a "colorable claim" that there was a "miscarriage of justice because of a constitutional violation" under Rule 61(i)(5).
CONSIDERATION OF PRESENT PLEADINGS AS A NEW TRIAL MOTION UNDER RULE 33
Defendant has not sought a new trial based on newly discovered evidence. Perhaps that is because the two year time limit for filing a Rule 33 Motion is "jurisdictional and mandatory". Maxion v. State, 686 A.2d 148 (Del. 1996). If his present claims, based on Jerome Reed's affidavit, were to be considered under Rule 33, I must impose the jurisdictional bar as it comes too late. His conviction was affirmed in July, 2001.
Because he is alleging innocence, I shall review why the claim has no merit even if it had been filed timely.
CREDIBILITY OF JEROME REED
Ralph Reed provided the Court an affidavit of Jerome Reed signed on November 24, 2004.
In Jerome Reed's affidavit, he states the following:
1. He was an eyewitness to the shooting.
2. Yvonne DeShields was present. She stopped a blue and white Bronco driven by a white man. She talked to the white man at the driver's side of the vehicle, then she walked around and got into the passenger side of the vehicle. They drove around the block, and she got out.
3. She called to Kenyon Horsey, who also was driving his vehicle down the street. Kenyon and Yvonne spoke.
4. Kenyon then went to the Bronco and gave the white man something. The Bronco pulled off and Kenyon pulled out again and fired at the Bronco and the Bronco ran into a house.
5. Kenyon gave the gun to Yvonne and she walked toward the graveyard. Later, Yvonne was in Kenyon's car talking.
At the evidentiary hearing, Jerome Reed testified as follows:
1. He was present with about 10 people at the scene of the shooting.
2. Cars would pull up and guys would run up and sell stuff (drugs).
3. He could recognize who did the shooting, but knew it was not Ralph because as he ran away, he ran into Ralph Reed. Ralph Reed was coming out of a house looking like he just woke up and asked what happened.
4. Jerome Reed then left the area.
5. Nobody from the Public Defender's office ever talked to him.
6. After the shooting, the lady (Yvonne) took the gun.
7. He does not know Ralph Reed. He does not see him at prison. Does not remember seeing him other than on the night of the shooting. He does know of him and knows his name.
8. He was an informant for Delaware State Police ("DSP") and attempted to pass what he knew to his "contact". Jerome Reed's testimony as to this was inconsistent and contradictory.
9. He did not know the shooter's name as anything but "Kenyon" because that is the name Yvonne shouted out. Also, he just knew Yvonne's first name. When asked how he knew last names for inclusion in his affidavit, he said he asked around at the prison kitchen and somebody told him.
10. He acknowledged a conviction in 2001 for Robbery 1st, Kidnaping 2nd, Burglary 1st, thefts, etc. and is serving a fifty-one year sentence. Prior convictions include other crimes of dishonesty, including falsely reporting a crime.
11. He contradicted himself as to who drafted the affidavit, first stating he wrote it but then stated someone else wrote it and he signed it.
Ralph Reed testified at the evidentiary hearing as follows:
1. He gave his attorney the name of Jerome Reed as a defense witness. On cross-examination he admitted he only knew Jerome Reed as "Jerome" or "Jay". He learned of his full name when he received Jerome Reed's affidavit out of the blue. He then admitted he could not and did not give trial counsel the name of Jerome Reed.
2. He said he did not know Jerome Reed and never had any conversation with him.
3. He testified he never told Mr. Haller about an alibi involving his grandmother's house. He said this despite (i) being present at his preliminary hearing when the detective testified Defendant reported to them he was asleep at his grandmother's house and was not at the shooting; (ii) being present at the suppression hearing at which the alibi was discussed; and (iii) being present when his trial attorney gave an opening statement in which the jury was told of the alibi; i.e., at grandmother's house. Trial counsel reported that it was at the trial, after several eyewitnesses identified Ralph as the shooter, that he learned of Ralph's position as to being present at the scene of the homicide. Proof of an alibi as the planned trial strategy is born out by the trial testimony of Ivy Miller, the Defendant's sister. She was a sequestered witness. She testified she was standing next to Ralph, at their grandmother's house, when she heard two shots.
Ralph Reed testified at trial as follows:
1. He stated Kenyon Horsey shot the man. [He was the only person at trial to testify that Kenyon Horsey was even present].
2. He stated he and Kenyon were taking turns selling drugs to people in cars when Kenyon went up to the Bronco and ended up shooting the man. He stated Yvonne was not there.
Sonya Lewis, a Department of Correction employee, testified she assigns inmates to cells at DCC. From May 10, 2004 to June 22, 2004, Ralph Reed and Jerome Reed were cell mates with Jerome on the top bunk and Ralph on the bottom bunk.
The DSP officer who was the informant contact for Jerome Reed testified that the DSP had stopped using Jerome Reed as an informant in September 1999 because of the falsely reporting conviction. He testified he never received any information from Jerome Reed about Little Creek; and if he had received information about a murder investigation, he would have passed it on to the unit involved.
ANALYSIS
In considering whether or not to grant a new trial based on newly discovered evidence, the Court should consider the following:
1. The evidence must be of such a nature that it probably would have changed the result if presented to the jury;
2. The evidence must have been newly discovered; i.e., it must have been discovered since the trial and the circumstances must be such as to indicate it could not have been discovered before trial with due diligence; and
3. The evidence must not be merely cumulative or impeaching. Lloyd v. State, 534 A.2d 1262, 1267 (Del. 1987).
In this analysis, I must say that the affidavit and circumstances of its creation lead any reasonable person to but one conclusion — it is not credible for at least the following reasons:
1. Jerome Reed's affidavit was provided to Defendant while at Delaware Correctional Center "out of the blue". It was just delivered to him.
2. Jerome Reed said names in the affidavit were provided to him while in the kitchen at Delaware Correctional Center.
3. Ralph and Jerome adamantly denied knowing each other. The fact that they were cell mates for 42 days several months before Jerome's affidavit landed in Ralph's lap adds to their credibility problems.
4. Jerome Reed's multiple convictions for felonies and crimes of dishonesty, while not as destructive of his credibility, are factors to be considered.
5. The circumstances of the creation of the affidavit are suspect. First Jerome Reed said he wrote it, but then upon being examined about the penmanship differences between his name and the body of the document, he testified someone drafted it and he signed it.
6. While the affidavit is cumulative as to what Ralph Reed testified — "Kenyon's the shooter" — it is impeaching in that Jerome says Yvonne DeShields was present and directly involved with the victim before the shooting and with Kenyon after the shooting, while Ralph's trial testimony was "She was not out there".
The evidence supporting Ralph Reed's guilt was strong. Three eyewitnesses who knew Defendant testified he was the shooter. None had any motivation to testify falsely. One was his childhood babysitter. Even his friends placed him at the scene of the shooting. At trial, other than Defendant, no one placed Kenyon Horsey near the shooting. Jerome Reed does accuse Kenyon Horsey, but his version, while supportive of Horsey being the shooter, is so far off base with what everyone else reported, including Defendant, that it is not credible. By way of example, he places Yvonne DeShields as being directly involved with Kenyon Horsey. Defendant does not even do that.
Also critical to the credibility analysis is that Jerome Reed does not put Defendant at the scene, but coming out of a house afterwards. Defendant's trial testimony puts him directly at the scene.
In reviewing the testimony of the trial witnesses, there is a harmonious, consistent report of what occurred. Defendant, Mr. Bacon and their lady friends were at the utility box near the entrance of Little Creek Apartments. Mr. Bacon and Defendant serviced the drive-by customers as to their drug needs. Defendant was "flammed" or ripped off by a customer who tried to drive away without paying and Defendant pulled his firearm and shot him.
What Defendant desires to do is substitute Mr. Horsey for Mr. Bacon and then have him be the shooter. Defendant's version is contrary to all the other evidence.
Based on the above discussion, even if the discovery of Jerome Reed was found to be something that could not have been discovered before trial with due diligence, I find that the "new" evidence probably would not have changed the result. The inconsistences are noted. The evidence of their conspiracy to create this "newly discovered evidence" is based on their contradictory testimony and on reasonable inferences. It is clear they were untruthful in their testimony. Finally, I find it, at best, to be merely cumulative and mostly impeaching based on the above discussion.
Consideration of a new trial under Superior Court Criminal Rule 33 is denied.
SUMMARY
All claims presented by the Defendant under Rule 61 or, alternatively, under Rule 33, are denied.