IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

Plaintiff, )

)

)

v ) Cr. ID. No. 0603015418A

)

)

ANTHONY WHITE, )
)

Defendant. )

Subrnitted: August 28, 2018
Decided: September 13, 2018

COMMISSIONER’S REPORT AND RECOMMENDATION

THAT DEFENDANT’S MOTION FOR POSTCONVICTION
RELIEF SHOULD BE DENIED

Martin O’Connor, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, Attorney for the State.

Anthony White, J ames T. Vaughn Correctional Center, Srnyrna, Delaware,
pro se.

Anthony A. Figliola, Jr., Esquire, Greto Law, Wilmington Delaware, counsel for
Defendant.

MAYER, Comrnissioner

This 13th day of September, 2018, upon consideration of Defendant’s Motion
for Postconviction Relief and the record in this matter, the following is my Report
and Recommendation.

BACKGROUND, FACTS AND PROCEDURAL HISTORY

1. ln 2007, a jury found Defendant, Anthony White, guilty of Attempted Murder
First Degree and Possession of a Firearm During the Commission of a Felony.l
Defendant filed an appeal, and his conviction was affirmed by the Delaware
Supreme Court on September 5, 2008.2

2. The facts were aptly summarized by the Supreme Court as follows:

On March 15, 2006, Jaywann Tucker and his friend,
Ahmand Phoenix, were hanging out on the street after
school. Tucker saw Qy-Mere Maddrey and decided to rob
him. Tucker held a gun to Maddrey’s face and took
Maddrey’s cell phone and marijuana Maddrey then called
his friend, White, and told him about the robbery. About
half an hour later, Maddrey and White found Tucker and
Phoenix on the street. Maddrey asked Tucker for
Maddrey’s cell phone and Tucker told him that he did not
have it. White then pulled out a gun and started shooting
at Tucker, who ran behind some buildings. White
followed him and shot Tucker in the face, left shoulder and
left foot.3

 

l D.l. # 63.
2 White v. State, 2008 WL 4107980 (Del. Sept. 5, 2008).

3 Id. at *1-2.

3. On January 14, 2009, Defendant filed his (First) Motion for Postconviction
Relief (the “First Motion”).4 Through his First Motion, Defendant alleged claims of
ineffective assistance of counsel, prosecutorial misconduct, and errors made by the
trial judge. That motion was denied5 and on May 4, 2010, the Supreme Court
affirmed the judgement of the Superior Court.6

4. In its 2010 decision, the Supreme Court noted that the State presented
surveillance camera videotape for the jury as well as gun casings, Detective Curley’s
testimony (chief investigating officer) and the police evidence technician’s
testimony. The Supreme Court recognized that:

The record reflects that the trial testimony of Tucker,
Phoenix and Maddrey contradicted prior statements that
each had given to Detective Curley. At trial, both Tucker
and Maddrey testified that they witnessed White shooting
at Tucker. In prior statements to Curley, however, Tucker
told Curley that he didn’t know who shot him and
Maddrey told Curley that he _ Maddrey - shot Tucker.
Phoenix, on the other hand, after telling Curley in a prior
statement that he saw White shooting at Tucker, testified
at trial that he did not witness the shooting and had no
knowledge of it whatsoever.

 

4 D.I.#103.
5 D.l.# lll, 116.

6 White v. State, 2010 WL 1781021 (Del. May 4, 2010).

Not surprisingly, White’s defense strategy focused on

attacking the credibility of Tucker, Maddrey and

Phoenix. . .7
Defendant also argued in that appeal that he was prejudiced when Jeree “Re-Re”
Richardson was not compelled to testify at trial. According to Defendant,
Richardson would have testified that Maddrey shot Tucker and was present when
Tucker robbed Maddrey. In resolving that matter, the Supreme Court determined
that the record did not support Defendant’s claim that Richardson would have
testified as proposed, and even if he had, Defendant did not demonstrate that the
result of the trial would have been different.8
5. On August 16, 2010, Defendant filed a (Second) Motion for Postconviction
Relief (the “Second Motion”).9 The Second Motion challenged certain
communications between the trial judge and the jury, as well as the introduction of
certain contradictory statements of one of the trial witnesses. The Second Motion

was denied‘° and the Superior Court judgment was affirmed on appeal."

 

7 Id. at*l.

8 ld. at *3.

9 D.I. # l20.
10 D.I. # 123, 125.

]' D.I. # 128.

6. Defendant has now filed his (Third) Motion for Postconviction Relief (the
“Third Motion”).12 Defendant’s Third Motion presents the following claims: (i) the
court lacked jurisdiction to convict him of Attempted Murder First Degree and he
cannot be convicted of a “non-crime”; and (ii) newly discovered evidence
demonstrates Defendant is actually innocent of the crimes for which he was
convicted. ApproXimately four (4) months after his Third Motion was filed,
Defendant also filed a Supplemental Report and Reasons for Relief White’s
Strickland/Brady Claims, which appears to raise claims of ineffective assistance of
counsel and Brady violations (the “Supplemental Report”).13

7. On January 11, 2018, the Court asked Defendant to expand on his claim of

new exculpatory evidence14 and in response, Defendant submitted the following'5:

 

'2 D.I. # 134, filed November 29, 2017. In addition to the post-conviction relief
motions, Defendant also filed a Motion for Correction of Sentence (D.l. # 127),
Motion for TIS Modification (D.I. # 130) and Motion for Reduction of Sentence
(D.I. # 132). These motions were denied. See D.I. # 129, 131, 133. Defendant also
sought relief in the United States District Court for the District of Delaware through
two Petitions for a Writ of Habeas Corpus. White v. Phelps, 2010 WL 4909343 (D.
Del. Nov. 24, 2010), White v. Pierce, 2014 WL 3828290 (D. Del. July 29, 2014).

'3 D.I. # 139. After noticing that the Court’s copy may have not been complete,
counsel for Defendant submitted what was intended as the Supplemental Report.
See D.I. # 151.

14 SeeD.I.#137.

'5 See D.I. #s 138, 139-143. The statements were sealed by the Court.

(a) an unsigned/unswom lnvestigative Insert summarizing
an interview with Qy-Mere Maddrey (the “Maddrey
Summary”). The Maddrey Summary purports to be an
interview between an investigator and Maddrey from
April 13, 2017. Maddrey is the uncle to Defendant’s child
and the notes reflect that Maddrey admitted to shooting the
victim but changed his testimony at trial because of
pressure from law enforcement;

(b) an unsigned/unswom summary that may be a
statement of Jeree “Re-Re” Richardson to Detective
Curley (the “Richardson Summary”). According to the
eXchange, Richardson saw Tucker rob Maddrey;

(c) an Affidavit of Updated Statement from J ames
Anthony Brown (the “Brown Affidavit”) dated March 15,
2018, Mr. Brown claims to have been with Maddrey when
he turned himself in to the police and confessed; '6 and

(d) an Affidavit of Updated Statement of Zekita Ann
Maddrey (the “Zekita Affidavit”). Zekita Maddrey is the
mother of Defendant’s child, and sister to Maddrey.
Zekita Maddrey claims her brother confessed to the
crime.17

 

'6 The proffers are at times inconsistent with each other and/or the record. Mr.
Brown states he brought Maddrey to the Police Station to turn himself in. However,
the Maddrey Summary indicates that he was alone when he turned himself in and
his mother later showed up for the questioning

‘7 Similar to Mr. Brown, there are inconsistencies with Zekita Maddrey’s statement
She claims she was at the trial and when Maddrey was asked who Shot Tucker, and
he was about to point to Defendant, she attempted to interrupt the proceedings to tell
Maddrey to make sure he tells the truth. However, the outburst took place when
Maddrey was asked about Tucker robbing him, not identification of Defendant or
the shooter. See March 9, 2007 Trial Transcript at pgs. 47-49.

With respect to the state witnesses - Maddrey,- Tucker, and Phoenix _ Defendant
believes (i) trial counsel did not attack the credibility of the witnesses; (ii) each is
known as a “pathological liar”; and (iii) Maddrey admitted he was the shooter and
then recanted, but White was denied his right to refute Maddrey’s repudiation at
trial.

8. The State filed a Response to the Motion for Postconviction Relief (the
“Response”) and suggests that the Third Motion be denied as untimely, or subject to
certain procedural bars, and/or denied on the merits.18

DEFENDANT’S RULE 61 MOTION

9. Before considering the merits of a defendant’s post-conviction claims, the
Court must first determine whether there are any procedural bars to the motion.19
After reviewing Defendant’s Third Motion, it is evident that pursuant to Super. Ct.
Crim. R. 61(d)(5) the motion may be summarily dismissed because it is procedurally

barred and it plainly appears, after considering the record in the case and prior

 

18 D.I. # 148. On May 15, 2018, Anthony A. Figliola, Jr., Esquire entered his
appearance on behalf of Defendant for the “second post conviction relief motion”

and states that “Counsel is aware of the current status of the filings” but seeks no
further relief. D.I. # 145.

19 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

proceedings, that the movant is not entitled to relief. As such, the Court should not
consider the merits of the claims.20

10. Defendant’s motion is procedurally barred by Super. Ct. Crim. R. 61(i)(1) for
having been filed more than one year after the conviction became final.21
Defendant’s Third Motion, having been filed more than nine (9) years after the
conviction was affirmed, is untimely.

ll. In addition, as this is Defendant’s third motion for postconviction relief, the
claims should only be considered if the motion either (i) pleads with particularity
that new evidence exists that creates a strong inference that the movant is actually
innocent in fact of the acts underlying the charges of which he was convicted; or (ii)
pleads with particularity a claim that a new rule of constitutional law, made
retroactive to cases on collateral review by the United States Supreme Court or the
Delaware Supreme Court, applies to the movant’s case and render the conviction or

death sentence invalid.22

 

20 Ia’. See also Paul v. State, 2011 WL 3585623 (Del. Aug. 15, 2011), at *l
(“Delaware law provides that the Superior Court must first consider whether the
defendant has satisfied the procedural requirements of Rule 61 before considering
the merits of his postconviction motion.”)

21 Defendant’s conviction became final when the Delaware Supreme Court issued

its mandate affirming the conviction or on September 5 , 2008. Super. Ct. Crim. R.
61(m)(2).

22 Super. Ct. Crim. R. 6l(i)(2); Super. Ct. Crim. R. 61(d)(2).

12. To the extent Defendant believes he has presented a new rule of constitutional
law rendering his conviction invalid, he is mistaken. Defendant relies on Rambo v.
State23 for the proposition that Attempted Murder First Degree is a “non-crime.” In
Rambo, the Delaware Supreme Court held that attempted felony murder is not a
recognized crime in Delaware. The reasoning being that attempt requires intent and
a person cannot attempt to commit a crime that can only be committed recklessly.
In this case, Defendant was convicted of attempted murder, a crime that includes
intent as an element of the charge.24 As such, Rambo does not apply to the facts of
this case and Defendant’s claims in this regard fail.25

13. Defendant’s Third Motion and the Supplemental Report also raise both
ineffective assistance of counsel claims as well as Brady26 violations Although
Defendant summarizes statements from potential witnesses, he does not clearly
explain in what form the statements existed at the time of trial, whether the State was

in possession of the statements, or that they were intentionally withheld from the

 

23 939 A.2d 1275 (Del. 2007).

24 See 11 Del. C. §636(a)(1).

25 See also Sykes v. State, 2018 WL 1410696 (Del. Mar. 20, 2018) (rejecting
argument that Rambo applies to charge of attempted intentional murder in the first

degree, an offense within the jurisdiction of the Superior Court).

26 Defendant appears to be referencing Brady v. Maryland, 373 U.S. 83 (1963).

discovery process. Not only has Defendant failed to substantiate his claims but these
claims are procedurally barred and Defendant has not plead any exceptions that
would allow their consideration Defendant argued ineffective assistance of counsel
in his First Motion and any similar claims, regardless of how they are re-couched,
are now barred by Super. Ct. Crim. R. 61(i)(4) as formerly adjudicated Any alleged
“Brady” violations should have been presented at trial, on appeal, or through the
post-conviction process. Those claims having not been previously asserted, despite
many opportunities to do so, are now deemed waived pursuant to Superior Court
Criminal Rule 61(i)(3). Defendant has not established cause for his failure to raise
these claims sooner nor prejudice from a violation of his rights.

14. Finally, Defendant argues “newly discovered evidence” demonstrates he is
actually innocent of the crimes charged. This Court recently examined both State
and Federal precedent and set forth a standard for determining what constitutes “new
evidence” in the context of Super. Ct. Crim. R. 61(d)(2)(i).27 A defendant must: (1)
persuade the court that no juror acting reasonably would have voted to find him
guilty beyond a reasonable doubt; (2) present new reliable evidence that was not
presented at trial; and (3) demonstrate that the evidence could not have been

discovered earlier through the exercise of due diligence. The court can also consider

 

27 State v. Sykes, 2017 WL 6205776, at * 5-6 (Del. Super. Dec. 7, 2017).

10

the timing of the submission and likely credibility of the affiant which bear on the
reliability of that evidence.28

15. Defendant’s motion fails to meet the required standard for presentation of new
evidence. First, the Maddrey Summary and the Richardson Summary are
unauthenticated, unsigned, and unsworn and therefore are not reliable or credible.
Second, the purpose of the affidavits was to point the finger at Maddrey as the
shooter instead of White, but this issue was thoroughly explored at trial and is not
“new” evidence.29 The Supreme Court acknowledged that defense counsel attacked
the credibility of each witness and the trial record clearly shows that each witness
was confronted with their contradictory statements, questioned about motive, bias
and basis to lie, and examined at length regarding any possible misrepresentations
either to the police or at the time of trial. Further, Maddrey’s confession to the
shooting and subsequent renunciation were explored, probed and challenged
zealously. Therefore, any statements that now purport to imply Maddrey had
confessed to the crime, is not “new” evidence that was unavailable at trial.

Defendant was given a full and fair opportunity to present this evidence to the jury,

 

28 Ia’.

29 See March 8, 2007 Trial Transcript at pgs. 43-46, 68-74 (Tucker cross-
examination and re-direct); pgs. 119-145 (Phoenix and Curley direct examination)
and March 9, 2007 Trial Transcript at pgs. 8-22 (Phoenix and Curley direct and cross
examination); pgs. 38 _ 76 (Maddrey direct, cross and re-direct examination).

11

and to attack the credibility of the witnesses, and cannot now do so again. Third,
the Supreme Court previously addressed the Richardson proffer and the recently
submitted summary does not offer anything to change the result of the trial or that
court’s decision.30 Last, the Brown and Zekita Affidavits are not reliable, contain
inconsistent information and come eight (8) years too late without justification.31
The Affidavits would have merely affirmed Maddrey’s confession which came out
at trial and at most would have been nothing more than cumulative (and possibly
inadmissible) evidence.

16. In summary, Defendant’s submissions were not discovered since the trial but
rather re-state information available at trial. None of the “new witnesses” provided
a justification for the delay in cooperating, or were in fact present during the trial,
and as such, the information could have been discovered before by the exercise of

due diligence. Based on a review of the weight of the testimony and evidence

 

30 Any arguments regarding Richardson’s proposed testimony are also barred by
Super. Ct. Crim. R. 61(i)(4) as formerly adjudicated because they were presented
to the Supreme Court on appeal of Defendant’s First Motion.

31 When the “newly discovered” witnesses were asked why they did not come

forward in the last ll years, they responded that they either did not have an answer
(Zekita Affidavit at p. 2), did not want to “take the fall” (Maddrey Summary at p. 2),
or simply focused on family instead (Brown Affidavit at p. 3).

12

presented at the trial, a reasonable juror could have voted to find him guilty beyond
a reasonable doubt.

For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief
should be DENIED.

IT IS SO RECOMMENDED.

/Q/_

COmlTllSSlOl'l€I` K‘dtl'lal`l

oc: Prothonotary

cc: Mr. Anthony White (SBI# 00372792)
Martin B. O’Connor, Esquire
Anthony A. Figliola, Jr., Esquire

13

