             IN THE SUPREME COURT OF THE STATE OF DELAWARE

TYRONE BUSSEY,                                 §
                                               §      No. 324, 2019
      Defendant Below,                         §
      Appellant                                §      Court Below: Superior Court
                                               §      of the State of Delaware
             v.                                §
                                               §      Cr. ID: 1503013837A
STATE OF DELAWARE,                             §
                                               §
      Plaintiff Below,                         §
      Appellee.                                §

                          Submitted: January 15, 2020
                          Decided:   February 11, 2020

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.

                                       ORDER

      This 11th day of February, 2020, after careful consideration of the parties’ briefs

and the record on appeal, it appears to the Court that:

      (1)    A Superior Court jury found Tyrone Bussey guilty of thirteen criminal

offenses, including two counts of aggravated menacing, two counts of possession of

a firearm during the commission of a felony, two counts of terroristic threatening,

assault in the third degree, and four counts of endangering the welfare of a child.

The Court sentenced Bussey to a total of eleven years and 150 days of Level V
incarceration followed by decreasing levels of supervision. We affirmed Bussey’s

convictions on direct appeal. 1

       (2)     Bussey moved for postconviction relief under Superior Court Criminal

Rule 61, contending that his trial counsel was ineffective because he did not object

to the admission, under 11 Del. C. § 3507,2 of certain statements he made to police

on the night of his arrest and did not properly cross-examine the two officers on the

timing of their preparation of their reports. The Superior Court denied the motion, 3

and Bussey appealed.          We conclude that Bussey has not shown that he was

prejudiced by his trial counsel’s allegedly deficient performance, and, therefore, we

affirm.

       (3)     The charges against Bussey arose from a domestic argument between

Bussey and his girlfriend, Kolanda Shelton. At the scene, Shelton told a first

responder that Bussey punched her in the face, held a gun to her head, and threatened

to kill her. Bussey then dragged Shelton to the backyard, and her son—having also

been threatened by Bussey—ran across the street to a neighbor’s house to call the




1
  Bussey v. State, 159 A.3d 713, 2017 WL 1215763 (TABLE) (Del. 2017).
2
  Under 11 Del. C. § 3507, “[i]n a criminal prosecution, the voluntary out-of-court prior statement
of a witness who is present and subject to cross-examination may be used as affirmative evidence
with substantive independent testimonial value.” That prior out-of-court statement, however,
should not be an interpretive narrative of the prior statement. See Higgins v. State, 337 A.2d 28,
29–30 (Del. 1975).
3
  State v. Bussey, 2019 WL 2613109 (Del. Super. Ct. June 26, 2019).
                                                    2
police. Bussey fled the scene when he heard the police arrive. Police later found the

gun in Shelton’s backyard.

      (4)      Two officers of the Laurel Police Department, Corporals Haddock and

Kansak, took statements from Shelton that night.         Shelton’s son also gave a

statement. Police arrested Bussey in the early morning hours following the

altercation.

      (5)      After Bussey’s arrest, the Justice of the Peace Court entered a no-

contact order, prohibiting Bussey from having any contact with Shelton or her

children. In violation of that order, Bussey contacted Shelton by mail and by phone

numerous times while he was detained pending trial. In those calls, which were

recorded, Bussey and Shelton discussed changing the statement that Shelton had

given to the police about Bussey having a gun during the altercation, hoping to

undermine his aggravated-menacing and possession-of-a-firearm-during-the-

commission-of-a-felony (“PFDCF”) charges.           At trial, Shelton and her son

testified—inconsistently with their statements to police—that Bussey did not have a

gun during the altercation. The trial court allowed the State to introduce Shelton’s

and her son’s prior statements as § 3507 statements.

      (6)      Bussey claims that the Superior Court abused its discretion by denying

his motion for postconviction relief. He argues that his trial counsel did not have a

valid strategic reason for failing to challenge the admissibility, accuracy, and

                                              3
reliability of the § 3507 statements. Specifically, he contends that his trial counsel

unreasonably failed to object to the State’s admission of Shelton’s § 3507 statements

which, in his view, were inadmissible interpretive narratives of what Shelton actually

said. Bussey also contends that his counsel unreasonably failed to cross-examine

the two officers who took the statements about when they wrote their police reports.

This, he says, was important because the officers wrote their reports months after the

incident and claimed to rely on their reports to remember what Shelton said months

earlier. He claims that the contents of the § 3507 statements prejudiced his case at

trial because, in the statements, Shelton claimed Bussey threatened her with a gun,

but, in her trial testimony, Shelton said he did not have a gun. Whether Bussey had

a gun during the altercation was an essential element of Bussey’s aggravated

menacing, PFDCF, and endangering-the-welfare-of-a-child charges.

          (7)    “We review a Superior Court judge’s denial of a Rule 61 motion for

postconviction relief for abuse of discretion.”4 We review questions of law de novo.5

          (8)    The State now contends that Bussey’s claim is procedurally barred

under Superior Court Criminal Rule 61(i)(4), which provides that “[a]ny ground for

relief that was formerly adjudicated, whether in the proceeding leading to the

judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal



4
    Neal v. State, 80 A.3d 935, 941 (Del. 2013).
5
    Id.
                                                   4
habeas corpus proceeding, is thereafter barred.”6 The State argues that Bussey’s

claims are barred because Bussey, by focusing on the accuracy of the § 3507

statements and the victims’ credibility, is essentially making a sufficiency-of-the-

evidence claim, which was raised and rejected by this Court on direct appeal. 7

Because the State did not present this argument to the trial court—to the contrary,

the Superior Court observed that “the Defendant and the State are in accord that no

procedural issues bar review of the substance of Defendant’s claims”—it is waived. 8

       (9)     To prove a claim for ineffective assistance of counsel, a movant must

satisfy the two-pronged test established in Strickland v. Washington.9 The movant

must first show that his attorney’s conduct fell below an “objective standard of

reasonableness” that is based on “prevailing professional norms.”10                          Once

ineffectiveness is established, the movant must show that the attorney’s deficient

performance prejudiced his case. 11 This means that there must be a reasonable



6
  Del. Super. Ct. Crim. R. 61(i)(4).
7
  Answering Br. at 13.
8
  Supr. Ct. R. 8. In any event, we do not accept the State’s characterization of Bussey’s claim as a
sufficiency-of-the-evidence challenge. Instead, we understand Bussey’s position to be that his
attorney provided ineffective assistance by not objecting to the admission of two § 3507 statements
and by not properly cross-examining the officers who presented the statements. He is not claiming
that the evidence presented to the jury was insufficient to convict him—rather, he is claiming that
a portion of that evidence was inadmissible and that his counsel failed to elicit further evidence
which, had it been elicited, would have cast doubt on the evidence used to convict him. That is
not a sufficiency-of-the-evidence claim. Therefore, even in the absence of waiver, Bussey’s claims
are not barred by Rule 61(i)(4).
9
  466 U.S. 668 (1984).
10
   Id.
11
   Strickland, 466 U.S. at 694.
                                                     5
probability that but for the attorney’s deficient performance, the result of the

proceeding would have been different. 12 A reasonable probability requires more than

a showing “merely that the conduct ‘could have or might have or it is possible that

[it would have]’ led to a different result.”13 “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.”14

       (10)    Bussey has raised some legitimate concerns regarding the manner in

which the State proved the substance of the statements Shelton made on the night

Bussey assaulted her. 15 And it is at least colorable that, had Bussey’s counsel

objected to the admission of the statements at trial, the trial court might have ruled

that the statements were inadmissible. But we need not consider whether Bussey’s

counsel’s failure to object was objectively reasonable under the circumstances

because, even if we were to conclude that Bussey’s counsel should have objected to




12
   Id.
13
    Redden v. State, 150 A.3d 768, 774 (Del. 2016) (citing Neal v. State, 80 A.3d 935, 942 (Del.
2013)).
14
   Strickland, 466 U.S. at 684.
15
   The unrecorded § 3507 statements were admitted through two officers, one of whom took notes
but destroyed them and one whom did not take notes. The officers recorded the statements in their
respective police reports but did not write their reports until months after the incident. And there
is reason to believe that the officers did not remember precisely what Shelton had said. The officers
needed to refer to their reports to remember the statements, and, even after doing so, could only
say what they believed she said.
                                                     6
the officers’ testimony, his failure to do so did not cause any prejudice to Bussey. 16

Although Bussey’s trial strategy was designed to show that he did not have a gun

during his altercation with Shelton, Bussey never disputed that Shelton told police

that night that he had a gun. In fact, Shelton admitted on direct examination before

the § 3507 statements were admitted that she told the police on the night of the attack

that Bussey was threatening her with a gun. 17 Thus, as noted in Bussey’s trial

counsel’s affidavit, “[w]hile Ms. Shelton testified that the statements she gave

included false allegations regarding [Bussey’s] actions, in particular the possession

of a firearm, the fact that a false statement was made to police and the context of the

same were never in dispute.”18

        (11)   Moreover, even if Bussey’s trial counsel had successfully challenged

the § 3507 statements, there was still enough evidence for the jury to conclude that

he had a gun when he threatened Shelton. Shelton’s neighbor, Tyreshia Taylor,

testified that she saw Bussey holding an object that she believed was a gun.

Shelton’s son’s § 3507 statement, which is not challenged, also stated that Bussey



16
   Monroe v. State, 2015 WL 1407856, at *3 (Del. March 25, 2015) (TABLE) (“Because an appellant
must prove both Strickland prongs, a court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. Instead, if it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.”) (quoting Strickland, 466 U.S. at 697)
(internal quotation marks omitted)
17
   Shelton also admitted at trial that, when she told her son to call the police, she asked him to “tell
them that his dad had a gun.” App. to Opening Br. at A206.
18
   Id. at A583–84.
                                                       7
threatened him and his mother with a gun. The transcripts of the prison phone

conversations, in which Bussey and Shelton discussed Shelton changing her original

story, also provided evidence that Bussey had a gun; during one call, when Bussey

accused Shelton of telling the police where he put the gun, Shelton said she did not

know where he put it.

      (12)   In short, it is not reasonably probable that, but for the admission of

Shelton’s § 3507 statements, the result of Bussey’s trial would have been different.

Because Bussey has not satisfied Strickland’s prejudice prong, the Superior Court

did not abuse its discretion when it denied Bussey’s motion for post-conviction relief

under Rule 61.

      NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                        BY THE COURT:


                                       /s/Gary F. Traynor
                                       Justice




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