IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

)

v. ) Case ID No.: 1505020908A

)

)

JAVON T. CANNON, )
)

Defendant. )

ORDER

Submitted: August 3 l , 2018
Decided: November 20, 2018

Upon Consideration OfDefendant Javon Cannon ’s Motz`onfor

Postconviction Relief,
DENIED.

J avon T. Cannon, Wilmington, DE. Self-represented Defendant.

Eric H. Zubrow, Esquire, Department of Justice, Wilmington, Delaware. Attorney
for the State.

MEDINILLA, J.

AND NOW TO WIT, this 20th day of November, 2018, upon consideration
of Defendant Javon T. Cannon (“Defendant”)’s Motion for Postconviction Relief,
the sentence imposed upon Defendant, and the record in this case, it appears to the
Court that:

1. On May 25, 2016, a jury returned verdicts of guilt against Defendant
for Possession of a Firearm During the Commission of a Felony (“PFDCF”),
Reckless Endangering in the First Degree, Disregarding a Police Signal, and several
traffic offenses.l Defendant appealed his convictions.

2. On appeal, Defendant argued that during the State’s closing and rebuttal
arguments, the prosecutor engaged in misconduct that was prejudicial and warranted
a new trial.2 First, he argued that the prosecutor’s statement that he was “not going
to lie” to the jury, which occurred during the State’s closing argument, was .
improper.3 He also argued that the prosecutor’s demonstration which included

placing a bullet on his counsel table and blowing on it to suggest movement of the

 

' For PFDCF, Defendant was sentenced to six years at supervision Level V. As to Reckless
Endangering in the First Degree, Defendant was sentenced to five years at supervision Level V,
suspended for two years and six months at supervision Level IV. For Disregarding a Police Signal,
Defendant was sentenced to two years at supervision Level V, suspended for one year at

supervision Level III.

2 Cannon v. Stale, 165 A.3d 288, 2017 WL 2653004, *1 (Del. June 19, 2017) (TABLE).

3 Ia’. at *2.

ammunition_not established by the record_was prejudicial misconduct4 On June
18, 2017, the Delaware Supreme Court affirmed the convictions and held that the
prosecutor’s statement did not rise to the level of prosecutorial misconduct and,
although the prosecutor’s demonstration with the bullet was improper, it was deemed
harmless error and not repetitive misconduct5

3. On August 10, 2017, Defendant timely filed this first Motion for
Postconviction Relief.6 Defendant argues the three following grounds for relief: (1)
that the State did not present sufficient evidence for a guilty verdict; (2) “ineffective
assistance of counsel,” that his attorney “failed to effectively cross examine state
witnesses on fingerprint and DNA analysis which was prejudicial to [him] under
Strickland;” and (3) “prosecutorial misconduct,” that the prosecutor’s statement
during closing and his demonstrative use of a bullet during rebuttal, were prejudicial
and warrant a new trial.7

Standard of Review
4. Superior Court Criminal Rule 61 is the exclusive remedy for persons

“in custody under a sentence of this court seeking to set aside the judgment of

 

4 Cannon, 2017 WL 2653004, at *3.
5 Id. at *2-3.
6 See D.I. #34 (Del. Super. Aug. 10, 2017) [hereinafter Def. Rule 61 Mot.].

7 Def. Rule 61 Mot., at 3-4.

conviction. . . .”8 This Court “must first consider the procedural requirements of
Rule 61 before addressing any substantive issues.”9 The procedural “bars” of Rule
61 are: timeliness,10 repetitiveness,ll procedural default,12 and former adjudication13
If any of these bars apply, the movant must show entitlement to relief under Rule

61(i)(5).14 The contentions in a Rule 61 motion must be considered on a “claim-by-

claim” basis.]5

 

8 DEL. SUPER. CT. CRIM. R. 61(a)(1). See, e.g., Warm'ck v. State, 158 A.3d 884, 2017 WL 1056130,
at *1 & n.5 (Del. Mar. 30, 2017) (TABLE) (citing Miller v. State, 157 A.3d 190, 2017 WL 747758
(Del. Feb. 24, 2017) (TABLE)) (denying Rule 35(a) motion attacking sufficiency of evidence in
indictment to which defendant pleaded guilty; defendant’s “challenge [of] his indictment is outside
the scope of Rule 35(a)” and was limited to Rule 61).

9 Bradley v. State, 135 A. 3d 748, 756- 57 (Del. 2016) (citing Younger v State, 580 A.2d 552, 554
(Del.1990)). See Rule 61(i) (setting forth Rule 61’ s procedural bars).

10 DEL. SUPER. CT. CRlM. R. 61(i)(1). See, e g., Evz'ck v State, 158 A. 3d 878, 2017 WL 1020456,
at *1 (Del. Mar.15,2017) (TABLE) (affirming denial of Rule 61 motion as untimely when filed
more than two years after conviction became final).

ll DEL. SUPER. CT. CRIM. R. 61(i)(2). See, e.g., Walker v. State, 154 A.3d 1167, 2017 WL 443724,
at *1-2 (Del. Jan. 17, 2017) (TABLE) (denying defendant’s third postconviction relief motion as
repetitive; “Rule 61 provides a limited window for judicial review, especially upon a repetitive

motion.”).
'2 DEL. SUPER. CT. CRlM. R. 61(i)(3).

'3 DEL. SUPER. CT. CRlM. R. 61(i)(4).

14 DEL. SUPER. CT. CRIM. R. 61(i)(5). See, e.g., Evick, 2017 WL 1020456, at *1 (discussing 2017
version of Rule 61(i)(5); holding untimely Rule 61 motion procedurally barred and defendant did
not show entitlement to relief under Rule 61(i)(5)).

15 State v. Reyes, 155 A.3d 331, 342 n. 15 (Del. 2017) (citations omitted) (“Rule 61 analysis should
proceed claim-by-claim, as indicated by the language of the rule.”).

Procedural Bars

5. As an initial matter, Defendant’s Motion was timely filed under Rule
61(i)(1).16 Defendant’s conviction was affirmed by the Supreme Court on June 18,
2017.17 Defendant filed this Motion on August 10, 2017. Therefore, Defendant’s
Motion was timely filed under Rule 61(i)(1).

6. Defendant’s first claim argues that the State did not produce sufficient
evidence to meet its burden of proving a defendant guilty beyond a reasonable
doubt.18 Rule 61(i)(3) states that a ground for relief is barred if it “was not asserted
in the proceedings leading to the judgment of conviction.”19 This claim is barred as
procedurally defaulted under Rule 61(i)(3) because Defendant did not assert it in
“the proceedings leading to the judgment of conviction” nor in his direct appeal.20

Further, Defendant does not meet the exception to this procedural bar under Rule

 

16 DEL. SUPER. CT. CRIM. R. 61(i)(1) (“A motion for postconvinction relief may not be filed more
than one year after the judgment of conviction is final. . .”).

17 DEL. SUPER. CT. CRIM. R. 61(m)(2) (stating that judgment of conviction is final for purposes of
Rule 61 when Supreme Court issues a mandate or order determining the case on direct review if

defendant files direct appeal).

18 Def. Rule 61 Mot., at 3-4.

19 DEL. SUPER. CT. CRIM. R. 61(i)(3).

20 See, e.g., State v. Payne, 2017 WL 325177, at *6 (Del. Super. Jan. 18, 2017) (finding that

defendant’s insufficiency of evidence argument is barred under Rule 61(i)(3) because it was not
raised on direct appeal); State v. Brown, 2008 WL 555921, at *2 (Del. Super. Feb. 28, 2008).

61(i)(3)(A) and (B) because he does not show “cause for relief from the procedural
default” nor prejudice from the violation of his rights.21

7. His second claim asserts ineffective assistance of counsel. Generally,
an ineffective assistance of counsel claim is not raised on direct appeal and is
properly asserted in a defendant’s first postconviction relief motion.22 Therefore,
this claim is not procedurally barred and will be addressed on its merits below.

8. Defendant’s final claim of prosecutorial misconduct is not new.
Specifically, he claims that the State engaged in misconduct when the prosecutor
made a statement to the jury during closing argument that he was “not going to lie”
to them, and when he conducted a demonstration with ammunition during the State’s
rebuttal argument23 Under Rule 61(i)(4), a ground for relief is barred if it was
formerly adjudicated, which includes in the proceedings leading to the judgment of
conviction, in an appeal, in a postconvinction proceeding, or in a federal habeas.24

This claim has been previously considered and rejected by the Delaware Supreme

 

21 DEL. SUPER. CT. CRIM. R. 61(i)(3).
22 See e.g., Payne, 2017 WL 325177, at *3; Cooke v. State, 977 A.2d 803, 848 (Del. 2009).
23 Def. Rule 61 Mot., at 3-4.

24 DEL. SUPER. CT. CRlM. R. 61(i)(4).

Court on direct appeal.25 Therefore, Defendant’s claim related to prosecutorial
misconduct is procedurally barred under Rule 61(i)(4).26

9. Furthermore, Defendant does not satisfy Rule 61(i)(5) in order to obtain
relief from his procedural bars. Rule 61(i)(5) states: “The bars to relief in paragraphs
(1), (2), (3), and (4) of this subdivision shall not apply either to a claim that the court
lacked jurisdiction or to a claim that satisfies the pleading requirements of
subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this rule.”27 Rule 61(d)(2)
provides relief if Defendant’s 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 new retroactive rule of constitutional law that applies to his
sentence28 Defendant does not plead the applicability of a new retroactive rule of
constitutional law. Under Rule 61(d)(2)(i), Defendant also does not plead with

particularity new evidence that creates a strong inference that he “is actually

 

25 See generally Cannon, 2017 WL 2653004.

25 See, e.g., Ringgold v. State, 103 A.3d 515, 2014 WL 5315349, at *2 (Del. Oct. 17, 2014)
(TABLE) (discussing Superior Court’s determination that some claims were procedurally barred
because they were raised and rejected on direct appeal).

27 DEL. SUPER. CT. CR1M. R. 61(i)(5).

28 DEL. SUPER. CT. CRIM. R. 61(d)(2).

innocent in fact of the acts underlying the charges of which he was convicted.”29

Thus the only remaining ground is his claim for ineffective assistance of counsel.
Ineffective Assistance of Counsel

10. In order for a defendant to prevail on an ineffective assistance of
counsel claim, he must satisfy the two-prong test from Strickland v. Washington.50
The defendant must prove “that trial counsel’s performance was objectively
unreasonable and that the defendant was prejudiced as a result.”51 Under the first
prong, a defendant must show that “counsel’s representation fell below an objective
standard of reasonableness.”52 To prove this standard, a defendant bears a heavy
burden.33 There is a strong presumption that the trial counsel’s representation was
professionally reasonable, which the defendant must overcome to establish a claim
vof ineffective assistance of counsel.34 Under the second prong, “if counsel was
deficient, there must be a ‘reasonable probability that, but for counsel’s

unprofessional errors, the result of` the proceeding would have been different.”’35 A

 

29 DEL. SUPER. CT. CRIM. R. 61(d)(2)(i).

30 466 U.S. 668 (1984).

51 Sykes v. State, 147 A.3d 201, 211 (Del. 2015) (citing Stricklana’, 466 U.S. at 694).
52 C00ke, 977 A.2d at 848 (quoting Strickland, 466 U.S. at 688).

33 Gail`is v. Stale, 697 A.2d 1174, 1178 (Del. 1997).

34 Id

35 Cooke, 977 A.2d at 848 (quoting Strickland, 466 U.S. at 694).
8

reasonable probability is defined as “a probability sufficient to undermine
confidence in the outcome.”36 Additionally, when an “attomey makes a strategic
choice after thorough investigation of law and facts relevant to the plausible options,
that decision is virtually unchangeable....”37 The trial court’s function is not “to

second-guess reasonable trial tactics.”58

1 1. Defendant argues that counsel “failed to effectively cross-examine state
witnesses on fingerprint and DNA analysis which was prejudicial to [him] under
Strickland.”59 The Court expanded the record and his trial counsel (“Counsel”)
submitted an affidavit in response to Defendant’s Motion. Counsel describes his
strategy of weaving the lack of forensic evidence throughout trial in an attempt to
establish reasonable doubt in the minds of the jury.40 He stated during his opening
statement that the jury would not see Defendant’s fingerprints on the gun, but rather .
that the evidence would show that another person’s DNA was found on the gun.41

Counsel further explained that as to Officer Landis’s cross-examination, “it would

 

36 Szrickland, 466 U.s. at 694.

57 Hoskins v. State, 102 A.3d 724, 730 (Del. 2014) (quoting Ploofv. State, 75 A.3d 840, 852 (Del.
2013)).

58 State v. Drummona', 2002 WL 524283, at *1 (Del. Super. Apr. 1, 2002).

59 Def. Rule 61 Mot., at 3.

40 D.I. # 38 (Del. Super. Apr. 27, 2018) [hereinafter “Aff. of Trial Counsel”].

41 Aff. of Trial Counsel at 2.

be counterproductive to challenge the procedures” used to ensure that the gun and
ammunition were not contaminated because someone else’s DNA was located on
the gun.42 He also states that he made a strategic decision not to engage in an
extensive cross-examination of Officer McCabe in order to leave the jury with the
“headline” of his testimony that if Defendant had ever touched the gun, then his
DNA would have been left on it.45 Counsel describes that the strategic purpose of
his cross examination was “to add to the lack of fingerprint evidence by indicating
that there would be other circumstantial evidence available that the gun was recently

thrown that was not present in this case.”44

12. To challenge the DNA expert’s testimony, Counsel decided the better
approach was to use basic demographics to have the expert explain the commonality
of DNA profile attributes found on trigger and trigger guards. This approach
allowed him to highlight that the DNA found could have been Defendant’s or that

of over fifty-thousand other African Americans in Delaware.45 Finally, Counsel

 

42 Aff. of Trial Counsel at 2.
45 See l`a'. at 2-3.
44 Id. at 3.

45 Aff. of Trial Counsel at 4.

10

asserts that he was able to fully argue the lack of forensic evidence as established
during both direct and cross-examinations.46

13. Under Rule 61(g)(3), Defendant provided a reply to Counsel’s
Affidavit.47 Defendant claims that Counsel “failed to express. . . [that his] DNA was
not found on any of the 22 rounds. . . [or] anywhere on [the] firearm. . . [that] someone
else’s DNA was found [on the firearm]...[that] no wittness (sic) during trial ever
testified to whether there were others in the vehicle. . .and [that his] DNA would not
be on [the] trigger or guard because it is illogical that anyone would throw a gun by
the trigger during a high speed chase.”48 His reply is not persuasive

14. Here, Counsel’s trial strategy was to produce reasonable doubt in the
minds of the jury related to the lack of forensic evidence. Counsel’s cross-
examinations of witnesses provided him with the ability to state in his closing
argument that Defendant’s DNA was not found on portions of the firearm or the
ammunition. Trial counsel’s “decision as to how to cross-examine a witness is a
tactical decision which deserves great weight and deference.”49 This Court finds

that Defendant cannot show that counsel’s representation fell below an objective

 

46 Aff. of Trial Counsel at 4-5.
47 D.I. #41 (Del. Super. Sept. 5, 2018) [hereinafter “Def.’s Reply”].
48 Def.’s Reply.

49 State v. Ellerbe, 2016 WL 4119863, at *3 (Del. Super. Aug. 2, 2016) (citations omitted).

11

standard of reasonableness And Defendant cannot overcome the strong
presumption that Counsel’s conduct “constituted sound trial strategy” and that
Counsel acted reasonably.50

15. Further, Defendant has not proven that he was prejudiced as a result of
Counsel’s allegedly deficient performance Defendant has not demonstrated how a
more elaborate cross-examination of witnesses would have resulted in a different
outcome.51 Therefore, Defendant cannot succeed on an ineffective assistance of
counsel claim.

Conclusion

16. Defendant’s first and third claims in his Motion are procedurally barred
pursuant to Rule 61(i)(3) and (4). Defendant’s second claim for ineffective
assistance of counsel fails as he has not established that Counsel’s representation fell
below an objective standard of reasonableness or that he was prejudiced as a result.

For the foregoing reasons, Defendant’s Motion for Postconvinction Relief is

/ ;/// j f

/Vivian'|:/. Medfnilla
Judge {,/'

DENIED.

 

 

. ') /
50 State v. Walsh, 2018WL 463 8010, at *4 (Del. Super. Sept. 26, 201 %citing Stri`/Ql¢z'-a?id, 466 U.S.
at 689; Flamer v. State, 585 A.2d 736, 753-54 (Del. 1990))- _ -"

5' See e.g., Ellerbe, 2016 WL 4119863,61*4.
12

OCI
CCZ

Prothonotary

Defendant

Kevin P. Tray, Esquire
Department of Justice
Investigative Services Office

13

