   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                      )
STATE OF DELAWARE                     )
                                      )
      v.                              )     I.D. No. 1208012890
                                      )
DERRICK SUDLER,                       )
                                      )
                   Defendant.         )
                                      )


                         Submitted: March 7, 2016
                          Decided: June 1, 2016

        On Defendant‘s Amended Motion for Postconviction Relief.
                             DENIED.

                                ORDER
Periann Doko, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Natalie S. Woloshin, Esquire, Woloshin, Lynch & Natalie, P.A., 3200
Concord Pike, Wilmington, Delaware, Attorney for Defendant.

COOCH, R.J.

    This 1st day of June, 2016, upon consideration of Defendant‘s
Amended Motion for Postconviction Relief, it appears to the Court that:

      1.    On August 6, 2012, Elizabeth Greene saw a suspicious man
            standing on her front porch with her house keys in his hand.
            Greene was able to see the man through a large, clear-glass
            window in her front door. When Greene asked the man what he
            was doing on her porch, the man replied that she had left her
            house and car keys outside. Greene, however, stated that she
            thought she brought the keys inside and that there was no way
            to forget her keys in the lock, because there is no lock on the
            exterior glass door and she would have needed them to lock the
     interior door from the inside. The man then placed the keys on
     the door and walked away. Greene called the Newark Police
     and reported the incident. When the police arrived at Greene‘s
     home, she described the man as a black male, wearing brown
     cargo shorts and a black shirt; about 5‘ 6‖; 20–25 years old;
     130–150 pounds; and having an ―afro‖ haircut.

2.   While the Newark Police were taking Greene‘s statement, they
     were alerted to a suspected burglary in progress down the street
     from Greene‘s home. The two witnesses to the alleged burglary
     were friends of the homeowner, Keenan Donnelly, who was not
     home at the time. The witnesses, Austin Bucci and Mark Scott,
     told police that they found the front door unlocked when they
     arrived at Donnelly‘s home. The witnesses walked into the
     residence and up to Donnelly‘s bedroom. When they walked
     into the bedroom they found the suspect crouching.

3.   Bucci and Scott both stated that the suspect was a black male
     with an ―afro-style haircut.‖ They also described him as having
     medium complexion; standing about 5‘7‖ tall; having a small
     amount of facial hair or a goatee; wearing a black shirt and tan
     cargo shorts with white gloves.

4.   Newark Police suspected Defendant was the perpetrator in both
     incidents, primarily because of the consistent descriptions by
     the three witnesses of Defendant‘s distinctive hairstyle. On
     August 13, 2012, Greene received a lineup of photographs from
     the Newark Police via email. From the photograph lineup, she
     identified Defendant as the man who was on her porch. At
     trial, Greene again identified Defendant as the man on her
     porch.

5.   On August 14, 2012, Austin Bucci met with the Newark Police
     and viewed a six-picture photograph lineup that included the
     Defendant‘s picture. Bucci, too, identified Defendant as the
     man he saw in the house the night of the alleged burglary. At
     trial, Bucci also identified the Defendant as the perpetrator.
     During the trial, Bucci again identified the Defendant. He
     expressed ―one hundred percent‖ certainty that Defendant was
     the person he saw perpetrating the burglary.


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6.   The same day they met with Austin Bucci, the Newark Police
     met separately with Mark Scott and showed him a six-picture
     photograph lineup. He, too, stated he had no doubt Defendant
     was the man he saw inside Donnelly‘s home the night of the
     burglary. At the trial, Mark Scott identified Defendant as the
     man he had seen in the house, stating he was certain regarding
     the identification.

7.   On March 1, 2013, following a three-day jury trial, Defendant
     was found guilty of one count of Burglary Second Degree and
     one count of Criminal Trespass First Degree. This Court
     granted the State‘s motion to declare Defendant a habitual
     offender pursuant to 11 Del. C. § 4124(a). Defendant received
     a sentence of eight years at Level V for the Burglary Second
     Degree conviction. For the conviction for the lesser included
     offense of Criminal Trespass Third Degree, Defendant received
     a sentence of one year at Level V suspended for sixth months at
     Level IV, followed by six months at Level III.

8.   Defendant contends his trial counsel was ineffective for failing
     to file a Motion to Suppress the pre-trial identifications made
     by the witnesses, and for failing to attempt to suppress the
     identifications made during the trial proceedings. Defendant
     also contends that the trial court failed to give a sufficient jury
     instruction as to the eyewitness identifications and the jury‘s
     ability to rely on them as evidence that Defendant was the
     perpetrator of the burglary. Finally, Defendant contends that his
     trial counsel was ineffective for failing to challenge the
     admissibility of the identifications. Defendant requests an
     evidentiary hearing to more fully develop these claims.

     The State of Delaware contends that trial counsel had the
     discretion to decide whether or not to file a Motion to Suppress
     the identifications and whether or not to argue the admissibility
     of the witness identifications. The State contends the decision
     to not argue those points was not ineffective because it was the
     product of defense counsel‘s discretion. The State also contends
     that more stringent jury instructions regarding pre-trial
     identifications were not required by Delaware law.



                               3
       9.     Defendant‘s Amended Motion is controlled by Superior Court
              Criminal Rule 61.1 Before addressing the merits of this
              Amended Motion, the Court must address the procedural
              requirements.2

       10.    A motion for postconviction relief can be procedurally barred
              for time limitations, successive motions, procedural defaults,
              and former adjudications.3 If a procedural bar exists, the Court
              will not consider the merits of the postconviction claim unless
              the Defendant can show that, pursuant to Rule 61(d)(2), the
              procedural bars are inapplicable.

       11.    None of the aforementioned procedural bars apply to Sudler‘s
              Amended Motion. Sudler‘s grounds for relief in this Amended
              Motion are based on the ineffective assistance of counsel he
              allegedly experienced with his prior counsel. Therefore, he
              could not have brought this claim earlier and the procedural
              bars of Rule 61 are not applicable.

       12.    Sudler‘s claims of ineffective assistance of counsel are
              reviewed under the United States Supreme Court decision in
              Strickland v. Washington.4 To determine whether a defendant
              was denied his Sixth Amendment right to effective assistance of
              counsel, Strickland established a two-prong test.5 First, a
              defendant must show that counsel‘s performance was deficient
              because the representation fell below an objective standard of
              reasonableness. 6 Second, the defendant must show prejudice
              from the deficient performance.7 ―This requires showing that
              counsel's errors were so serious as to deprive the defendant of a
              fair trial, a trial whose result is reliable.‖8 If the Defendant did

1
  Super. Ct. Crim. R. 61. The Amended Motion is governed by the most-recently
amended Rule 61.
2
  Younger v. State, 580 A.2d 552, 554 (Del. 1990).
3
  Super. Ct. Crim. R. 61(i)(1)-(4).
4
  466 U.S. 668 (1984).
5
  Ploof v. Delaware, 75 A.3d 811, 820 (―While the Sixth Amendment is not directly
applicable to the State of Delaware, the United States Supreme Court has applied the
Sixth Amendment to the states through the Fourteenth Amendment.‖).
6
  Strickland, 466 U.S. at 687–88.
7
  Id.
8
  Id.
                                           4
              not receive deficient representation, a court does not need to
              consider Strickland‘s prejudice prong.

       13.    When evaluating whether counsel‘s representation fell below an
              objective standard of reasonableness, a court must ―eliminate
              the ‗distorting effects of hindsight‘ and ‗indulge a strong
              presumption that counsel's conduct falls within the wide range
              of reasonable professional assistance.‘‖9 To establish prejudice,
              a defendant must show ―a reasonable probability that, but for
              counsel‘s unprofessional errors, the result of the proceeding
              would have been different.‖10 ―A reasonable probability is a
              probability sufficient to undermine confidence in the outcome‖;
              a lower standard than ―more likely than not.‖11 Finally, when
              reviewing trial counsel‘s performance under Strickland, there is
              ―a strong presumption that the representation was
              professionally reasonable.‖12

       14.    Sudler‘s first argument claims his trial counsel was ineffective
              by failing to file a Motion to Suppress the pre-trial
              identifications made by the witnesses and for failing to file a
              Motion to Suppress the in-court identifications made by the
              witnesses. Sudler claims that the identifications made by the
              witnesses were under circumstances that were unduly
              suggestive and objectionable.13 Based on the decision to not
              attempt to suppress the identifications, Sudler claims his due
              process rights were violated. The Court directed Sudler‘s trial
              counsel, John S. Edinger, Jr., to file an affidavit responding to
              the motion for postconviction relief. That affidavit reads in toto:

              I, John S. Edinger, Jr., being duly sworn according to law, do
              hereby depose and say:

              1. I represented the Defendant at trial on February 27, 28, and
                 March 1, 2013 as well as [at] sentencing on May 24, 2013.

              2. In his post-conviction motion Defendant alleges ―Trial Counsel
                 was ineffective in failing to file motion [sic] to suppress the

9
  Ploof, 75 A.3d at 821 (quoting Strickland, 466 U.S. at 687-689).
10
   Strickland, 466 U.S. at 687-689.
11
   Id. at 693-94.
12
   Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
13
   Pet‘r Derrick Sudler‘s Amended Mot. for Postconviction Relief at 20-39.
                                           5
                  pre-trial out-of-court identification of Mr. Sudler as
                  impermissibly suggestive and for failing to object to the in-
                  court identification of Mr. Sudler by witnesses following the
                  impermissibly suggestive pre-trial identification which resulted
                  in a violation of Mr. Sadler‘s [sic] Sixth Amendment right and
                  Due Process rights.‖

               Trial counsel chose not to file a motion to suppress prior trial [sic]
               because: 1. He did not believe such a motion would be successful;
               and 2. Argument for such motion would only alert the State of the
               weaknesses of the out-of-court identification and in turn give them
               the opportunity at trial to sanitize any in-court identification by the
               witness. However, after reviewing the Defendant‘s petition for
               relief, Trial Counsel now in hindsight agrees that such a motion
               should have been filed.14

       15.     Sudler devotes nearly 30 pages to discussing emerging trends
               and cutting-edge research in law and science regarding
               problems with eyewitness identification, and he cites numerous
               authorities on the subject.15 Sudler, however, fails to articulate
               why the identification procedures raised the risk of
               misidentification to such a degree as to call the validity of his
               conviction into question. This Court has previously had
               occasion to hear and adjudicate Rule 61 claims regarding
               alleged failures to challenge pre-trial identifications.16 There, as
               here, this Court finds it necessary to comment that modifying
               Delaware‘s entrenched law based on newly emerging trends in
               national approaches to pre-trial identifications and photograph
               array presentations is—distinctly—an issue for the Delaware
               Supreme Court.




14
   Affidavit of John S. Edinger, Jr., Esq. at 1-2.
15
   Pet‘r Derrick Sudler‘s Amended Mot. for Postconviction Relief at 10-39. See, e.g.,
James Doyle, True Witness: Cops, Courts, Science and the Battle Against
Misidentification, 91; Elizabeth Lofus & Katherine Ketcham,Witness for the Defense:
The Accused, the Eyewitness, and the Expert Who Puts Memory On Trial 13 (1991).
16
   See, e.g., State v. Burroughs, 2016 WL 1436949, *4-5 (Del. Super. Apr. 4, 2016) (in
Burroughs, this Court had occasion to address the fact that, while emerging law and
science indicates misidentification issues and overly-suggestive interview techniques are
sometimes glossed over, in Burroughs, as is the case with the matter at bar, no evidence
existed to suggest that the identifications made by the witnesses arose from impermissible
identification procedures and interview techniques).
                                             6
       16.     Although Sudler seems to advocate for a more progressive
               standard for photograph lineup identification procedures17 in his
               Amended Motion, he acknowledges that the Court applied the
               two-prong test adopted by Delaware law.18 In its ruling, the
               Court stated that there was a two-step process in evaluating
               claims of suggestive identification procedures.19 The first
               prong is whether the out-of-court identification procedure is
               impermissibly suggestive.20 The Court noted that the second
               prong is whether there was a substantial likelihood of
               misidentification.21 The Court further stated that ―if the [C]ourt
               finds that the defendant has not carried his burden [to show], by
               a totality of the circumstances, an impermissibly suggestive
               photo lineup procedure, then the Court need not reach the
               second prong.‖22

       17.     Sudler claims that investigating Newark Police Officer
               Corporal D‘Elia engaged in impermissible suggestion as to the
               identity of the Defendant in the photograph lineup Greene
               received via email. There is no evidence, however, suggesting
               that any impermissible activity took place via the phone
               interview or the August 13, 2012 photograph email.
               Furthermore, Corporal D‘Elia reported that Greene identified
               Defendant from the photograph lineup within a minute or two,
               which suggests that no coaching or impermissible suggestion
               occurred.



17
   State v. Henderson, 27 A.3d 872 (N.J. 2011) (ordering revision and modification of
New Jersey‘s traditional jury instructions on identification that resembled Delaware‘s
instruction and stating more indicia assuring real identification without improper
suggestion from law enforcement were necessary to secure justice for defendants).
18
   Pet‘r Derrick Sudler‘s Amended Mot. for Postconviction Relief at 14-20. See also
Harris v. State, 350 A.2d 768, 770 (Del. 1975) (citing Neil v. Biggers, 409 U.S. 188, 196-
198 (1972)).
19
   Biggers, 409 U.S. at 196-198.
20
   Id. See also Harris, 350 A.2d at 770.
21
   Id. See also Younger v. State, 496 A.2d 546, 550 (Del. 1985) (citing Manson v.
Brathwaite, 432 U.S. 98 (1972)) (―That a confirmation is suggestive, without more,
however, cannot amount to a due process violation; the unnecessarily suggestive
identification procedure must also carry with it the increased danger of irreparable
misidentification.‖).
22
   Id. See also State v. Burroughs, 2016 WL 1436949 (Del. Super. Apr. 4, 2016).
                                            7
       18.    Sudler states that there were not enough filler photographs that
              resembled him in the six-photograph array shown to the
              witnesses.23 Part of the argument is that the photographs in the
              identification array were deficient because only Sudler had all
              the features described to the Newark Police.24 Sudler also takes
              issue with the comments made to the witnesses during the pre-
              trial identification proceedings: he argues that, when Corporal
              D‘Elia asked Mark Scott and Austin Bucci if they were certain
              they had made a correct identification, the police were
              impermissibly interfering with the identification process.25
              When a police officer asks a witness which photograph he or
              she claims is that of a defendant, this does not rise to the level
              of impermissible suggestion. Furthermore, it would impose an
              onerous requirement on police officers if they could not use
              common speech patterns and idiom when inquiring into which
              photograph a witness claims is that of a defendant, as Corporal
              D‘Elia did in the present case.26 The comments referenced by
              Sudler in his Amended Motion do constitute impermissible
              suggestion, nor are they indicative of coaching or other
              untoward behavior by law enforcement.27 Because the
              photograph identification procedure was not impermissibly
              suggestive, it is unnecessary to address the second prong.

       19.    While the identification procedures used by the Newark Police
              may not have been an absolute model of investigative
              procedure, the procedures certainly pass constitutional muster.
              Additionally, analyzed under the Strickland v. Washington
              standard, prior counsel was not ineffective for failing to file a
              Motion to Suppress because the decision to file or not to file
              such a motion is a strategic decision to be made by counsel
              upon assessing the specific facts of a case. Furthermore, prior
              counsel was aware that filing a Motion to Suppress would tip

23
   Pet‘r Derrick Sudler‘s Amended Mot. for Postconviction Relief at 26-29.
24
   Id.
25
   Id.
26
   Id.
27
   Id. (Defendant‘s post-conviction counsel even notes that Austin Bucci was able to
―immediately‖ eliminate at least ―four of the [photographs]‖ in the array when it was
presented to him; the recorded audio conversation referenced in the Amended Motion
suggests nothing other than Corporal D‘Elia asking Bucci for confirmation regarding
which of the final two photographs he was identifying as Derrick Sudler).
                                            8
               off the State‘s attorneys about the manner in which Defendant
               was attempting to defend himself.28 Counsel‘s course of action
               was a strategic decision receiving broad deference; it does not,
               therefore, constitute ineffective assistance.

       20.     Given the strong presumption that counsel‘s conduct falls
               within the wide range of reasonable professional assistance,
               trial counsel‘s decision to not file a Motion to Suppress did not
               violate the Sixth Amendment. Although it may have been
               possible for trial counsel to move pre-trial to suppress the
               identification evidence, it was within counsel‘s professional
               judgment to decide what issues to pursue.29 Therefore, trial
               counsel was not ineffective for failing to file the Motion to
               Suppress. Trial counsel‘s present opinion that ―in hindsight [he]
               agrees that such a motion should have been filed,‖ is, of course,
               not determinative.30


       21.     Although Sudler‘s Amended Motion devotes significant
               attention to the emerging law and science of eyewitness
               identification, he does not identify any issues with the
               identification process that could provoke an observer to think
               there is a reasonable probability the identification proceedings
               were compromised.31


       22.     The second argument Sudler makes in support of his ineffective
               assistance of counsel claim rests on the contention that the
               Court did not give a sufficient jury instruction regarding
               eyewitness identification, though the jury instruction regarding


28
   Strickland, 466 U.S. at 688-690 (noting that strategic decisions made by counsel are
virtually unchallengeable and articulating a strong presumption that counsel‘s
representation was within the range of reasonable professional assistance).
29
   Smith v. Robbins, 528 U.S. 259, 288 (2000) (―[C]ounsel . . . need not (and should not)
raise every nonfrivolous claim, but rather may select from among them in order to
maximize the likelihood of success . . . . Notwithstanding Barnes, it is still possible to
bring a Strickland claim based on counsel‘s failure to raise a particular claim, but it is
difficult to demonstrate that counsel was incompetent.‖) (citing Jones v. Barnes, 463 U.S.
745 (1983)).
30
   Affidavit of John S. Edinger, Jr., Esq. supra note 14.
31
   Pet‘r Derrick Sudler‘s Amended Mot. for Postconviction Relief at 10-20, 26-29.
                                            9
              identification was the ―pattern‖ instruction. The instruction
              regarding the identification of the Defendant read:
              A matter which has been raised in this case is the identification of
              the defendant. You must be satisfied beyond a reasonable doubt
              that the defendant has been accurately identified, that the defendant
              was, indeed, the one that did the act charged, and that this act
              actually took place before you may find him guilty of any crime. If
              there is any reasonable doubt about his identification, you must
              give him the benefit of such doubt and find him not guilty.32

               Sudler argues that the trial court ought to have given jury
              instructions along the lines of those formulated by New Jersey
              in the aftermath of Henderson.33 The Delaware Superior Court,
              however, has explicitly declined to follow New Jersey‘s
              approach to jury instructions for witness identifications, and
              Defendant‘s argument regarding more extensive jury
              instructions along the lines of those on offer in New Jersey is
              without merit.34 Because this Court has so far rejected the
              reasoning in Henderson, it would have been improper for the
              Court to give jury instructions in line with recent New Jersey—
              as opposed to Delaware—law.


       23.    Finally, Sudler asserts that his counsel was ineffective for
              failing to argue the admissibility of the in-and-out-of-court
              identifications made by the witnesses. Based on his trial
              counsel‘s strategic decision to not file a Motion to Suppress the
              identifications made by the witnesses, his trial counsel can
              hardly be faulted for failing to argue that the identifications
              ought to have been suppressed.

       Therefore, Defendant‘s Amended Motion for Postconviction Relief is
DENIED. Defendant‘s request for an evidentiary hearing is rendered moot
and is DENIED.

32
   Appendix to Pet‘r Derrick Sudler‘s Amended Mot. for Postconviction Relief at A090-
091.
33
   Pet‘r Derrick Sudler‘s Amended Mot. for Postconviction Relief at 40-43.
34
   State v. Holmes, 2012 WL 4086169, *13 (Del. Super. Aug. 23, 2012) (holding that
witnesses should be shown photograph lineups separately so as to not taint proceedings,
but also explicitly rejecting New Jersey‘s approach to eyewitness jury instructions
embodied in Henderson).
                                           10
      IT IS SO ORDERED.

                                    ______________________
                                      Richard R. Cooch, R.J.

oc:   Prothonotary
cc:   Investigative Services




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