SUPERIOR COURT
OF THE

STATE OF DELAWARE

E. SCOTT BRADLEY 1 The Circle, Suite 2
JUDGE GEORGETOWN, DE 19947

February 19, 2020

Michael H. Tipton, Esquire Brian T. Jordan, Esquire
Department of Justice Jordan Law, LLC

114 East Market Street 704 North King Street, Suite 600
Georgetown, DE 19947 Wilmington, DE 19801

Cleon L. Cauley, Sr., Esquire Natalie S. Woloshin, Esquire

The Cauley Firm Woloshin, Lynch & Associates, P.A.
One Customs House 3200 Concord Pike

704 North King Street, Suite 600 P.O. Box 7329

Wilmington, DE 19801 Wilmington, DE 19803-7329

Re: State of Delaware v. Richard Aiken
Def. ID# 1507021054A
Motion for Postconviction Relief —R1
Dear Counsel:

This is my decision on a timely first Amended Motion for Postconviction
Relief (the “Motion”) filed by Defendant Richard Aiken (“Aiken”). Aiken and his
co-defendant, Marcie Karr (“Marcie”), were charged with a series of burglaries that
occurred in the summer of 2015 in Sussex County, Delaware. Marcie plead guilty

and testified against Aiken at trial. Aiken was ultimately convicted of two counts

of Burglary in the Second Degree (and related counts of Theft, Criminal Mischief
and Witness Tampering) and one count of Conspiracy in the Second Degree. The
burglary convictions are related to two separate burglaries, the Cox burglary (the
“Cox Burglary”) and the Elliott burglary (the “Elliott Burglary”) (collectively, the
“Burglaries”). This prosecution against Aiken began when Probation and Parole
officers visited a camper occupied by Dwayne Karr (“Dwayne”), who was on
probation. The officers found Aiken, who was also on probation, in the camper.
The officers searched Aiken and found a brown bag in his pocket containing stolen
jewelry. The officers found a black bag near where Aiken was sitting that also
contained stolen items.

Before addressing the merits of the Motion, I first address the four procedural
bars of Superior Court Criminal Rule 61(i).!_ If a procedural bar exists, as a general
rule, I will not address the merits of the postconviction claim. Under the Delaware
Superior Court Rules of Criminal Procedure, a motion for post-conviction relief can
be barred for time limitations, successive motions, failure to raise claims that could

have been raised previously, or former adjudication.

 

1 Ayers v. State, 802 A.2d 278, 281 (Del.2002) (citing Younger v. State, 580 A.2d 552, 554 (Del.
1990).

2 Bradley v. State, 135 A.3d 748 (Del 2016); State v. Page, 2009 WL 1141738, at*13 (Del.
Super. April 28, 2009).

3 Super. Ct. Crim. R. 61(i).
First, a motion for postconviction relief exceeds time limitations if it is filed
more than one year after the conviction becomes final, or if it asserts a retroactively
applicable right that is newly recognized after the judgment of conviction is final,
more than one year after the right was first recognized by the Supreme Court of
Delaware or the United States Supreme Court.’ In this case, Aiken’s conviction
became final for purposes of Rule 61 at the conclusion of direct review when the
Delaware Supreme Court issued its mandate on October 23, 2017. Aiken filed his
pro se first motion for postconviction relief on December 4, 2017. Therefore,
consideration of the Motion is not barred by the one-year limitation of Rule 61(i)(1).
I note that the Motion was filed after the one-year limitation of Rule 61 (February 15,
2019). However, Superior Court judges have “discretion to permit defendants to
amend their motions when justice so requires.”>

Second, subsequent motions for postconviction relief are not permitted unless
certain conditions are satisfied.® Since this is Aiken’s first motion for postconviction
relief, these restrictions do not apply.

Third, grounds for relief “not asserted in the proceedings leading to the

Judgment of conviction” are barred unless the movant can show “cause for relief’ and

 

4 Super. Ct. Crim. R. 61(i)(1).
5 Ploof vy. State, 75 A.2d 811, 821 (Del. 2013).
6 Super. Ct. Crim. R. 61(i)(2).
“prejudice from [the] violation.”’ This bar does not apply in this case (see discussion
of ineffective assistance of counsel, below).

Fourth, grounds for relief formerly adjudicated in the case, including
“proceedings leading to the judgment of conviction, in an appeal, in a post-conviction
proceeding, or in a federal habeas corpus hearing” are barred. This bar does not
apply in this case (see discussion of ineffective assistance of counsel, below).

Aiken’s Motion is based on claims of ineffective assistance of counsel. It is
well settled Delaware law that ineffective assistance of counsel claims may not be
addressed by the Delaware Supreme Court on direct appeal. Rather, such collateral
claims are properly raised for the first time in postconviction proceedings.’ Thus the
issues presented in the Motion could not be “asserted in the proceedings below” under
Rule 61(i)(3) and thus were not “formerly adjudicated” under Rule 61(i)(4). As a
result, the procedural bars under Rule 61(i)(3) and Rule 61(i)(4) do not apply.

Finally, the four procedural bars do not apply either to a claim that the Court

lacked jurisdiction or to a claim that pleads with particularity that new evidence exists

 

7 Super. Ct. Crim. R. 61(i)(3).

8 Super. Ct. Crim. R. 61(i)(4).

9 State v. Schofield, 2019 WL 103862, at *2 (Del. Super. January 3, 2019); Thelemarque v. State,
2016 WL 556631, at *3 (Del. Feb. 11, 2016) (“[T]his Court will not review claims of ineffective
assistance of counsel for the first time on direct appeal.”); Watson v. State, 2013 WL 5745708, at
*2 (Del. Oct. 21, 2013) (“It is well-settled that this Court will not consider a claim of ineffective
assistance that is raised for the first time in a direct appeal.”).

4
° or that a new retroactively

that creates a strong inference of actual innocence,!
applied rule of constitutional law renders the conviction invalid.'' None of these
claims applies in this case.

Thus, none of the procedural bars under Rule 61 applies in this case, and I will
consider Aiken’s claims on the merits.

Aiken brings four claims of ineffective assistance of his trial co-counsel
(collectively, “Trial Counsel”), which are assessed under the two-part standard
established in Strickland v. Washington, '* as applied in Delaware.'? Under
Strickland, Aiken must show that (1) Trial Counsel’s representation “fell below an
objective standard of reasonableness” (the “performance part”); and, (2) the
“deficient performance prejudiced [his] defense” (the “prejudice part”). '4 In
considering the performance part, the Strickland Court was mindful that “[S]trategic
choices made after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable.”'? Strickland requires an objective analysis,

making every effort “to eliminate the distorting effects of hindsight” and to “indulge

 

10 Super. Ct. Crim. R. 61(i)(5).

11 Super. Ct. Crim. R. 61(d)(2)(i) and (ii).
12 466 U.S. 668 (1984).

13 Albury v. State, 551 A.2d 53 (Del. 1988).
14 Id. at 687.

15 Id. at 690.
a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.”'® Moreover, “strategic choices about which lines of
defense to pursue are owed deference commensurate with the reasonableness of the
professional judgments on which they are based.”"”

As to the performance part, Aiken must show that Trial Counsel’s decisions
(1) not to object to Officer McCabe’s testimony about various stolen items found by
police in either the brown bag found on Aiken’s person or the black bag found on
the camper floor where Aiken was arrested, (2) not to object to certain statements
made by the prosecutor in closing, (3) not to question Marcie about her plea, and (4)
not to challenge Aiken’s conviction of Conspiracy in the Second Degree in the post-
trial Motion for Judgment of Acquittal, were not reasonable strategic decisions. In
my view, all of these decisions by Trial Counsel were strategically reasonable.
Thus, Trial Counsel’s strategic decisions do not amount to ineffective assistance of
counsel, as discussed more fully below.

As to the prejudice part of Strickland, Aiken must demonstrate that there

exists a reasonable probability that, but for Trial Counsel’s unprofessional errors,

 

16 Id. at 689.
17 Id. at 681.
the outcome of the trial would have been different.!* Even if Trial Counsel’s
performance were professionally unreasonable, it would not warrant setting aside
the judgment of conviction if the error had no effect on the judgment.'? A showing
of prejudice “requires more than a showing of theoretical possibility that the
outcome was affected.”’° In my view, even if Trial Counsel’s four strategic
decisions were deemed to constitute ineffective assistance of counsel, the ultimate
outcome of the trial would not have been different. Thus, Trial Counsel’s strategic
decisions did not prejudice Aiken’s defense under the prejudice part of the Strickland
test.

Strickland also teaches that there is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in a particular order, or even to
address both parts of the inquiry if the defendant makes an insufficient showing on
one. If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, that course should be followed.?' In every case, the court

should be concerned with whether, despite the strong presumption of reliability, the

 

18 Id. at 687; Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003); Wright v. State, 671 A.2d 1353,
1356 (Del. 1996).

19 Strickland, at 691.

20 Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992).

21 Strickland, at 697.
result of the particular proceeding is unreliable because of a breakdown in the
adversarial process that our system counts on to produce just results.””
Argument One

First, Aiken argues that Trial Counsel failed to object to Officer McCabe’s
testimony about various stolen items on the basis that McCabe was unable to identify
some of the stolen items and that photographs of those stolen items were not properly
authenticated. The Delaware Rules of Evidence provide:

“To satisfy the requirements of authenticating or identifying an item of

evidence, the proponent must produce evidence sufficient to support a

finding that the item is what the proponent claims it is.”
Under Delaware law, there must be a sufficient foundation for a jury to find that the
evidence is what the proponent claims.** Authentication can be satisfied by a
witness with knowledge testifying that the item is what the proponent claims.”
Aiken concedes that the burden of establishing such a foundation is a lenient one.

Aiken states that McCabe arrived on the scene after the stolen items had been

laid out on the trunk of the Mercury Marquis, and thus had no first-hand knowledge

about the items found by the police either in the brown bag found in Aiken’s pants

 

22 Id. at 696.

23 D.R.E. 901(a).

24 Mills v. State, 2016 WL 152975 (Del. Jan 8, 2016).
25 D.R.E. 901(b)(1).
pocket or in the black bag found on the camper floor where Aiken was arrested.
Aiken reasons that the State’s case would have been much weaker, and therefore he
would have been more likely to be acquitted of the Burglaries, if McCabe had been
prevented from testifying about the stolen items found in the brown bag. Since the
brown bag was found on Aiken’s person, it was harder for Aiken to deny that the
brown bag belonged to him. Moreover, he argues, Trial Counsel’s failure to object
to McCabe’s testimony prejudiced his case on direct appeal because it prevented him
from arguing that the stolen items were commingled.

In their Affidavits in response to the Motion, Trial Counsel state that they did
not object to McCabe’s testimony because they wanted to use McCabe’s lack of
knowledge to argue that the investigation of the Burglaries was shoddy and that there
were inconsistencies and inaccuracies in his testimony. This was a reasoned part of
their trial strategy. Delaware law provides that “a decision made in pursuit of
reasonable trial strategy does not constitute ineffective assistance of counsel.”7°
Both Trial Counsel and the State argue that Trial Counsel’s strategy and actions were
reasonable under the circumstances and therefore do not constitute ineffective

assistance of counsel. I agree.

 

26 Ruffin v. State, 2019 WL 719038, at *2 (Del. Feb. 19, 2019), citing Allison v. State, 2010 WL
373919 (Sept. 24, 2010); Robertson v. State, 38 A.3d 1255 (Table), 2012 WL 628001, at *4 (Del.
Feb. 27, 2012).
I conclude that McCabe’s lack of complete knowledge does not matter. The
testimony of the various officers who searched the camper and car, the pictures of
the bags and the stolen items, and common sense establish that McCabe’s testimony
was correct. Moreover, the problem with Aiken’s argument is that the items stolen
and recovered from the Burglaries were found in either the brown bag or the black
bag, and both bags were linked to Aiken. The brown bag was found on Aiken’s
person, and both Dwayne and Marcie testified that the black bag belonged to Aiken.
Marcie testified that Aiken used the black bag both to store his clothes and in at least
one burglary. Thus, whether the stolen jewelry came from the brown bag or the
black bag is of no consequence. This is established by the testimony summarized
below and by trial exhibits 5, 6, 7, 8 and 9 (the photographs of the stolen items).

Summary of Testimony

 

Officer Hopkins
Probation and Parole Officer George Hopkins went to a camper located at
22831 Bunting Road in Georgetown, Delaware on July 16, 2015 (B-17 & 18).”’
Hopkins saw Aiken on a seat in the camper (B-19). Hopkins searched Aiken and
found a brown colored canvas bag in his pants-pocket (B-21). Hopkins saw a black

backpack next to the couch (B-37). Hopkins testified that there was some “random

 

27 References are to the official Transcript of the Proceedings.

10
gold jewelry” in the brown bag (B-46). Aiken told Hopkins that the jewelry in the
brown bag was stolen (B-46).
Officer Glenn

Probation and Parole Officer Jason Glenn also went to the camper (B-48).
Glenn saw the brown bag of jewelry that was located on Aiken (B-52). Glenn found
a black book bag on the floor in the center of the camper (B-52). Glenn searched
the black bag and found some drug paraphernalia, jewelry and watches in it (B-52).
Glenn called Detective McCabe and told him that he found a gold firefighter’s
watch, class rings, and jewelry in the black bag (B-53-54). Glenn was shown at
trial a picture that eventually became Exhibit 6 (B-54). Glenn testified that the
picture showed the contents of the black bag. Exhibit 6 shows a number of items
including watches, change and jewelry. Glenn testified that the black bag included
drug paraphernalia, identification, clothes, jewelry, and a pill bottle (B-57). Glenn
also testified that Exhibit 6 showed most of the items found in the black bag except
for the pill bottle and identification (B-61). Glenn also testified the black bag had
letters in it (B-83).

Officer McCabe
Delaware State Police Officer Keith McCabe also went to the camper.

Officer McCabe testified that Officer Glenn contacted him at home and told him that

1]
he found a gold pulsar fire company watch (B-96). When McCabe arrived on the
scene, he saw property taken from the search sitting on the trunk of a car (B-98 and
Exhibit 5). This included a brown bag, a black bag, two pill bottles, a letter, coins,
a cell phone, and other miscellaneous property (B-99). McCabe recognized a fire
company watch and a Vallejo High School ring as being stolen (B-99). McCabe
and another officer searched the camper (B-100). They found two Pandora
bracelets, ear buds for an iPhone 6 and a Delaware I.D. Card for Kylee Davis (B-
101). The two bracelets were found in a cupboard (B-102). McCabe looked at
Exhibit 6, which is a picture he took of the black bag and various items. McCabe
testified the items in the picture came out of the black bag (B-102). McCabe
identified the fire company watch as coming from the black bag (B-103). McCabe
looked at Exhibit 7, which is a picture he took of the brown bag found on the
Defendant (B-104). McCabe testified that the items in the picture came from the
brown bag (B-104). The items included class rings, a masonic ring, a bracelet with
several rings on it, charms, and earrings (B-108). McCabe testified that a class ring
and masonic ring came from separate burglaries three miles apart (B-109). McCabe
also testified that the bracelet with rings on it came from the burglary where the class
ring and the fire company watch were stolen (B-109). McCabe testified that the

police searched a Mercury Marquis vehicle found at the scene that was registered to

12
Marcie’s father and found a silver colored ring with a light green stone, another
Pandora bracelet, a religious medallion, a black bag containing a laptop computer, a
Samsung tablet, a Samsung Galaxy phone, and rubber gloves (B-110-111).
McCabe testified that a Dagsboro fire company watch, a Vallejo High School ring
and a bracelet with several rings on it that had been stolen from the Cox residence
and that the ring and bracelet with rings on it were in the brown bag that was found
on Aiken and that the watch was in the black bag (B-126-128). McCabe testified
that a masonic ring and high school ring that were stolen from the Elliott residence
were recovered (B-128). McCabe testified that the rings were in the brown bag (B-
130-131). McCabe acknowledged that he did not have first-hand knowledge of
what was in the black bag. Instead, he only knew what he was told. McCabe also
acknowledged that he did not have first-hand knowledge of what was taken from the
brown bag on Aiken’s person.
Victim Michelle Cox

Cox testified that she got her Vallejo High School ring, her husband’s fire

company watch, a bracelet with rings on it, charms, and several other items back

(CC-180 and Exhibit 8).

13
Victim Gordon Elliott

Elliott testified that he got his dad’s masonic ring and his wife’s Laurel High

School ring back (CC-217 and Exhibit 9).
Dwayne Karr

Dwayne Karr and his wife, Marcie Karr, lived in the camper (C-34). Dwayne
owned the camper (C-34). Dwayne had been in a serious motor vehicle accident
and was unable to drive a car or walk very far (C-34-35). Dwayne testified that the
black bag found on the camper floor did not belong to him (C-36). Dwayne testified
that it belonged to Aiken and that Aiken used it to carry his clothes when Dwayne
and Marcie took Aiken to a motel room (C-36). Dwayne testified that he would
occasionally see Aiken with the black bag (C-37). Dwayne also testified that the
black bag did not belong to Marcie.

Co-Defendant Marcie Karr

Marcie testified that she drove Aiken to Dagsboro (C-66). Marcie parked at
a pizza place and Aiken got out (C-67-68). Aiken returned carrying a bag with him,
got in the car, and told Marcie to leave (C-68). Marcie was shown Exhibit 11,
which is the black bag found in the camper(C-68). Marcie testified that it was the

bag that Aiken had with him when he returned to the car (C-69). Marcie added that

14
there were pills in the bag and that Aiken took some of them out and offered them
to her (C-69).
Summary of Photographs in Evidence

There were six distinctive pieces of jewelry that were stolen from the Cox
Burglary and the Elliott Burglary and found by the police when they searched Aiken,
the brown bag, the black bag, the camper, and the Mercury Marquis parked outside
of the camper on July 16, 2015. A Vallejo High School ring, a fire company watch,
a bracelet with rings on it, and various charms were stolen from Cox. A masonic
ring and Laurel High School ring were stolen from Elliott. The four distinctive
items were returned to Cox on August 3, 2015. The two distinctive items were
returned to Elliott on August 3, 2015. The police searched four areas on July 16,
2015: Aiken and the brown bag that was found on him, the black bag found on the
camper floor, the camper itself, and the Mercury Marquis parked outside the camper.
The police found a brown bag in Aiken’s pants pocket that had some random gold
jewelry in it according to Officer Hopkins. The police found a black bag on the
floor in the camper that had drug paraphernalia, jewelry and watches in it according
to Officer Glenn. When shown Exhibit No. 6, which is a picture of the black bag
and a number of items, Officer Glenn testified that the items shown in the picture

came out of the black bag. The picture shows, among other things, several watches

15
and jewelry. It does not show any rings, or a bracelet with rings on it or charms.
Officer Glenn testified that one of the items in the black bag was a gold firefighter’s
watch. The police searched the camper and found two Pandora bracelets in the
cupboard. The police searched the Mercury Marquis and found a silver colored ring
with a light green stone and another Pandora bracelet. The police found other items
in the camper and Mercury Marquis, but no other jewelry. The jewelry that the
police did find in the camper and Mercury Marquis were not stolen in the Cox and
Elliott Burglaries. Thus, by process of elimination, the six distinctive items were
found in either the brown bag or black bag.

This is further borne out by the pictures taken by the police of the stolen items
they recovered on July 16, 2015. Exhibit 5 is a picture of the stolen property on the
trunk of the Mercury Marquis. It shows the brown bag with jewelry still inside two
plastic bags next to the brown bag and the black bag with watches and other items

next to it.

[he Brown Bag

Exhibit 7 shows the brown bag, the now-emptied two clear plastic bags, a
masonic ring, a bracelet with rings on it, two high school class rings, a number of
charms, and other pieces of jewelry. The masonic ring and one of the high school

class rings were returned to Elliott and are shown in Exhibit 9. Exhibit 7 and

16
Exhibit 9 both clearly show the masonic ring. Both pictures also show a class ring.
The other high school class ring, bracelet with rings on it, and charms were returned
to Cox and are shown in Exhibit 8. Exhibit 7 and Exhibit 8 both clearly show the
bracelet with rings on it and the charms. Five charms are identifiable in both
pictures (a heart, a double heart, a key, a cross and a butterfly). Both pictures also
show a class ring.

eps

[he Black Bag

Exhibit 6 shows the black bag, a fire company watch, and other items. The
fire company watch was returned to Cox and is shown on Exhibit 8. Exhibit 6 and
Exhibit 8 clearly show the same fire company watch in both.

In any event, the testimony of the three officers and the two victims and the
pictures relate the six distinctive items to either the brown or the black bag. The
pictures show five of the six distinctive items - the two class rings, the masonic rings,
the bracelet with rings on it and the charms - next to the brown bag. The pictures
show the sixth distinctive item - the fire company watch - next to the black bag.

I conclude that the pictures of the brown bag and their respective contents are
reliable. Officer Glenn testified that Exhibit 6 was a picture of the black bag and
its contents. Although no one testified that Exhibit 7 was a picture of the brown

bag and its contents, the picture notes that the “items were found on Aiken’s person,”

17
and the brown bag was found on Aiken’s person. Common sense dictates that if
there is a picture of a bag with items next to it, the logical conclusion is that the items
came out of that bag. There is no plausible reason why the contents of the two bags
would have been dumped out and commingled before taking photographs of each
bag and its contents separately. Aiken’s argument in this regard strains credulity
and has no testimonial or logical support. When asked about this, Officer Glenn
testified that he took the items out of the black bag and set them down on the floor
close to the bag. There is no mention at all of him taking the items out of the brown
bag and commingling them with the items that came out of the black bag.
Conclusion

I conclude that Officer McCabe testified correctly that the two class rings and
masonic ring, and bracelet with rings on it came from the brown bag and that the fire
company watch came from the black bag. Even assuming commingling, it remains
clear that the jewelry taken in the Cox Burglary and the Elliott Burglary was found
in the brown and black bags, and both of those bags were linked to Aiken. The
police found nothing in either the camper or the Mercury Marquis that was stolen in
the Cox Burglary or the Elliott Burglary. Both Dwayne and Marcie linked the black
bag to Aiken. Dwayne testified that the black bag found in the camper did not

belong to him or Marcie. Instead, he testified that it belonged to Aiken and that the

18
Aiken used it to carry his clothes. Indeed, the black bag had Aiken’s clothes in it.
Marcie testified that, after she took Aiken to one of the burglaries in Dagsboro near
the pizza place, he came back with the black bag in his hand and took a pill bottle
out of it. Marcie identified Exhibit 11 as a picture of the black bag. Moreover, the
black bag is logically related to Aiken. Aiken did not live in the camper and the
Mercury Marquis did not belong tohim. Thus, it would not make any sense for him
to store his valuable items in either the camper or the car. Instead, it would make
much more sense for Aiken to store his items in the black bag, which is exactly what
he did, and in the brown bag, which he kept on his person.
Argument Two

Second, Aiken argues that Trial Counsel failed to object to two instances of
prosecutorial misconduct relating to statements in the State’s closing argument.
The first instance was the prosecutor allegedly mischaracterizing the evidence by
arguing to the jury that victim Michelle Cox identified Aiken as fleeing from her
house at the time of the burglary. The second instance was the prosecutor allegedly
improperly bolstering or vouching for Marcie.

In their Affidavits, Trial Counsel state that they did not object to either
argument by the prosecutor because they believed that the arguments were within

permissible limits.

19
The Delaware Supreme Court has discussed the permissible bounds of
comment by the prosecution generally:

“Not every improper remark by a prosecutor requires reversal, but only
that which prejudicially affects substantial rights of the accused. Super.
Ct. Crim. R. 52(a); Edwards v. State, 320 A.2d 701 (Del. 1974).
Although the prosecutor operates within an adversary system, his duty
is to seek justice, not merely convictions.

A prosecuting attorney represents all the people, including the
defendant who was being tried. It is his duty to see that the State's case
is presented with earnestness and vigor, but it is equally his duty to see
that justice be done by giving defendant a fair and impartial trial.
Bennett v. State, (3 Storey 36), 164 A.2d 442, 446 (Del. 1960). That
same duty requires the prosecutor to refrain from legally objectionable
tactics calculated to arouse the prejudices of the jury.”

The Delaware Supreme Court has also has discussed the permissible bounds
of comment by the prosecution in closing argument specifically:

“The prosecutor in his final summation should not be confined to a
repetition of the evidence presented at trial. He is allowed and expected
to explain all the legitimate inferences of the appellants’ guilt that flow
from that evidence. The prosecutor, nevertheless, must remember his
unique position within the adversary system.””’ [Internal Citations
Omitted]

“Closing argument is an aspect of a fair trial] which is implicit in the
Due Process Clause of the Fourteenth Amendment by which the States
are bound. (T)he process of constitutional line drawing in this regard is
necessarily imprecise .... Indeed, it is frequently difficult to ascertain
whether courts are speaking of errors so fundamentally unfair as to deny

 

28 Sexton v. State, 397 A.2d 540, 544 (Del. 1979)
29 Hooks v. State, 416 A.2d 189, 204-05 (Del. 1980).

20
the defendant due process or whether courts are merely exercising their

supervisory power to curtail prosecutorial misconduct. But, in either

event, the ethics of the legal profession are in issue....““*° [Internal

Citations Omitted]

The ABA Standards for Prosecution Functions address both portions of the
State’s closing argument to which Aiken objects:

“5.8 Argument to the jury.

(a) The prosecutor may argue all reasonable inferences from evidence

in the record. It is unprofessional conduct for the prosecutor

intentionally to misstate the evidence or mislead the jury as to the

inferences it may draw.

(b) It is unprofessional conduct for the prosecutor to express his

personal belief or opinion as to the truth or falsity of any testimony or

evidence or the guilt of the defendant.”?!

Identification

Aiken argues that the prosecutor’s statement in his closing argument that
Michelle Cox’s testimony put Aiken at the scene, when coupled with his statement
that Cox saw Aiken running, constitute an identification of Aiken by Cox, when in
fact Cox did not identify Aiken. The State argues that the statements were proper,
and, even if they were improper, there was no plain error under Delaware law.

The following is the prosecutor’s complete statement on this issue, not just

the snippet cited by Aiken in his Motion:

 

30 Bennett v. State, 3 Storey 36, 164 A.2d 442, 446 (1960).
31 ABA Standards, the Prosecution and Defense Functions (1971).

21
“There is stuff that ties Mr. Aiken back to these
crimes. He’s found with the jewelry. And Marcie puts
him there.

Ms. Cox’s residence, not only does Marcie put him
there, Ms. Cox puts him there. She comes home. She
drives past her driveway so she can back in and sees the
abandon[ed] building, which she was very specific about.
Ten days that building had been abandoned. She was just
wondering why there would be a car parked there. So she
notices it. She notices the color. Shé notices that there
is a female behind the driver’s seat and that the person is
on the phone. She pulls into her driveway to what I’m
assuming she felt was a safer distance, gets out of her car,
walks to the front, and sees Mr. Aiken running. She
doesn’t know Mr. Aiken. She sees a man hunched over
carrying something and she gets to see basically from his
knees to his feet. She identifies him as being a white male
with hairy legs.” (E-82)*”

The prosecutor was making two points. One, there was jewelry found on Aiken
that came from the Cox Burglary. Two, Marcie’s testimony put Aiken at the Cox
Burglary and Michelle Cox’s testimony put Aiken at the Cox Burglary as well.
Taken in its entirety, I find no error with the prosecutor’s statements. He is simply
arguing that the evidence and Michelle Cox’s testimony put Aiken at the Cox
residence at the time of the Cox Burglary. The prosecutor is drawing reasonable

inferences from Michelle Cox’s testimony, inferring that Aiken was the person

 

32 References are to the official Transcript of the Proceedings.

22
running away from the Cox residence. The prosecutor’s statements taken as a
whole make it clear what Michelle Cox saw a white male with hairy legs hunched
over and carrying something. The prosecutor did not argue to the jury that Michelle
Cox had actually identified Aiken as the man running away from the Cox residence.
Thus, the prosecutor did not mischaracterize the evidence. The statements were
proper.

Having found the State’s closing statements to be proper, there is no need for
me to discuss whether Aiken’s rights have been substantially violated by improper
statements under the tests of Hughes v. State’? and Hunter v. State.**

Vouching/Bolstering
Aiken argues that a statement by the prosecutor in his closing argument
improperly bolstered Marcie’s testimony and vouched for her credibility. The State
argues that the statement was proper and, even if it was improper, there was no plain
error under Delaware law.
Under Delaware law, it is improper for a lawyer to vouch for a witness or to

bolster the testimony of a witness.*° This is especially true when the credibility of

 

33 437 A.2d 559 (Del. 1981).

34 815 A.2d 730 (Del. 2002).

35 Brokenbrough vy. State, 522 A.2d 851, 855 (Del. 1987); Del. Lawyers’ R. Prof’! Conduct
3.4(e).

23
the witness is the subject of the vouching or bolstering, “because jurors may easily
interpret vouching by the prosecutor as an official endorsement of the witness.”%°
On the other hand, as discussed above, the prosecutor may argue all reasonable
inferences from the evidence and testimony of record, so long as he does not express
his personal belief or opinion as to the truth or falsity of any testimony or evidence.
The following is the prosecutor’s complete statement on this issue:
“And Marcie then basically says the same thing.

She says she’s parked there. He got out. A couple minutes

later he came running and got back into the car. He had a

bag. He opens the bag. He says, go. So they get out of

there. As they are leaving, he opens the bag and they start

to snort pills. He opens the black bag and he starts to snort

pills. How would Marcie know about the pills and the bag

and how it ties back to the Cox residence unless that is

true? She wouldn’t.” (E-83)
The prosecutor’s statement was made to demonstrate that Marcie’s testimony
regarding the Cox Burglary was credible. Michelle Cox had testified about two
things that are relevant in this regard. First, Cox testified about returning to her
home and seeing a woman sitting in a parked car at a closed pizza place on a property

next to her residence. About 20 to 30 seconds later Cox saw a man “skulking”

around the building next door, in a hoodie, shorts and tennis shoes. Cox testified

 

36 Whittle v. State, 77 A.3d 239 (Del. 2013).

24
that the man was holding some things in front of him and that he got in the car and
it took off. Cox testified the car was maroon-colored. Cox described the man as
white and having hairy legs. Second, Cox testified that three bottles of her pain
medication were gone.

Marcie also testified about the same two things. Marcie testified that Aiken
asked her for a ride to Dagsboro. Marcie parked at a pizza place. Marcie stated that
the Mercury Marquis she drove was maroon-colored. Marcie testified that Aiken got
out and then returned a few minutes later and got in the car with a bag in his hands
and told Marcie to leave. Marcie identified the black bag that the police found in the
camper as the bag that Aiken had with him. Marcie testified that after Aiken got
back in the car he started going through the bag and pulled some hydrocodone pills
out of it and asked Marcie if she wanted some. Marcie told Aiken that she did.

Considering the prosecutor’s comments together with the testimony of Cox
and Macie on this point, it is clear that there is no improper vouching or bolstering.
The prosecutor is only pointing out that Marcie would not have known about the
pills unless she was there when Aiken committed the Cox Burglary. Cox testified
that the burglar took, among other things, her pain pills. Marcie testified that Aiken
had returned to her car with a black bag that had pills in it. Given the testimony by

Cox and Marcie about this happening when Marcie took Aiken to the pizza place, it

25
is clear that this implicates the Cox Burglary. The prosecutor’s point is that Marcie
would not have known about the pills unless she was actually there with Aiken when
he committed the Cox Burglary. Moreover, Marcie’s testimony is consistent with
Cox’s testimony. Unlike the Whittle case on which Aiken relies, the prosecutor did
not tell the jury that Marcie was “right.” The prosecutor’s closing statement was
proper.

Having found the State’s closing statement to be proper, there is no need for
me to discuss whether Aiken’s rights have been substantially violated by improper
statements under the tests of Hughes and Hunter, supra.

Argument Three

Third, Aiken argues that Trial Counsel failed to cross-examine Marcie, the
key witness against Aiken on the Cox Burglary and the Elliott Burglary, about her
plea agreement in order to establish that she was biased against him. Aiken argues
that this constitutionally deficient performance caused significant prejudice to Aiken
and that the outcome of the case would have been different if cross-examination
about the plea agreement had taken place.

Under Delaware law, “the bias of a witness is subject to exploration at trial
and is ‘always relevant as discrediting a witness and affecting the weight of his

testimony.’ Moreover, ‘cross examination on bias is an essential element of the

26
constitutional right of confrontation.””?’ The “specifics of a plea agreement’ are an
appropriate subject of inquiry during cross examination.’””*

Marcie was initially charged as a co-defendant with the same crimes as Aiken,
but she pled guilty to three misdemeanors and received a sentence of one year of
level two probation. At trial, Marcie gave testimony that both helped and hurt
Aiken.

In their Affidavit, Trial Counsel state that they did not question Marcie about
her plea because she had significant testimony favorable to Aiken, and thus they did
not want to undermine her credibility as a State witness. Trial Counsel’s strategy
was to use Marcie’s testimony to show that Aiken was a traveling tattoo artist who
accepted jewelry and other items in payment for tattoos. In his Motion, Aiken is
very dismissive of this strategy, but I believe that the issue is more nuanced than
Aiken now suggests. Marcie testified that (1) Aiken was a tattoo artist; (2) Aiken
did not have his own shop or work for anyone else; (3) Aiken did a tattoo for her
husband, Dwayne, and went to Dwayne’s house to do it; (4) Aiken went to the

Classic Motel and did tattoos for the people living there; (5) Aiken accepted jewelry

in payment for tattoos; (6) Marcie sold some of Aiken’s jewelry at pawn shops

 

37 Wilson v, State, 950 A.2d 634, 638 (Del. 2008), quoting Van Arsdall v. State, 486 A.2d 1, 6
(Del. 1984), rev'd on other grounds [Internal Citations Omitted]
38 Id., at 639.

27
because Aiken did not have a driver’s license; (7) Aiken got rides from Marcie; and
(8) Aiken got jewelry from his sister. This testimony from Marcie provided Trial
Counsel with an alternative explanation (i.e., other than burglary) as to why Aiken
would be in possession of the jewelry.

On the other hand, Marcie offered testimony that hurt Aiken, or was at least
mixed, with respect to the Cox Burglary and the Elliott Burglary. Those burglaries
occurred on July 13, 2015. Her testimony established that she dropped off and
picked up Aiken near the Cox and Elliott residences in Dagsboro on that day.*?
However, Marcie said that she was just going to Dagsboro to meet a friend for lunch
and that Aiken asked her for aride. She did not testify that she took Aiken there so
he could burglarize homes. Marcie advised that, once there, Aiken got out to look
ata motorcycle. Her testimony tied Aiken to the black bag; she said that Aiken had

40 Marcie also

the black bag when he came back from what was the Cox Burglary.
testified that she drove Aiken around to various places in Sussex County. Marcie

did not testify that she and Aiken were involved in a burglary spree in Sussex County

in the summer of 2015.

 

39 At trial, Marcie was unable to recall her conversation with McCabe well, so the State
presented the content of her statement through McCabe pursuant to 11 Del. C. §3507.
40 Dwayne also tied the black bag to Aiken, and, given Dwayne’s physical and mobility
limitations, it is obvious he was not the burglar.

28
In many criminal trials, defendants have few if any witnesses to offer
testimony helpful to their cases. In this case, however, Marcie proffered testimony
that was helpful to Aiken. I conclude that Trial Counsel’s strategy of using
Marcie’s testimony to explain why Aiken was in the possession of jewelry and to
blame the police for a shoddy investigation was not ineffective. Trial Counsel did
the best they could under the circumstances. Moreover, merely attacking Marcie’s
credibility would have been problematic, in that other evidence corroborates much
of her testimony.

Even if Trial Counsels’ failure to establish Marcie’s potential bias is deemed
to be ineffective assistance of counsel, and even if Trial Counsel had attempted to
establish such bias, I do not believe it would have changed the outcome of the trial.
Her testimony on the Cox Burglary and the Elliott Burglary is credible because other
evidence and the testimony of other witnesses corroborate it. Marcie’s testimony
about taking Aiken to a brick house on Firetower Road in Dagsboro is supported by
other evidence showing that this location is right across the street from the Elliott
residence. Her testimony about taking Aiken to the pizza place was corroborated
by Cox’s testimony about seeing a woman in a maroon car parked next to the pizza
place and seeing a man run to the car. Marcie testified that Aiken was carrying a

black bag when he got back in the car and that it had pills in it. Cox testified that

29
her pain pills were stolen. The police found a black bag on the floor of the camper
when they arrested Aiken. Finally, the police found six items of distinctive jewelry
stolen from the Burglaries in the brown and black bags that are linked to Aiken.
The problem for Trial Counsel in attacking Marcie’s credibility is that Marcie’s
testimony on the Burglaries was supported by other evidence that they could not
attack. Attacking Marcie’s credibility was not going to make that other credible
evidence go away.

Thus, I find that Trial Counsel’s strategy and actions were reasonable under
the circumstances and therefore do not constitute ineffective assistance of counsel.

Argument Four

Fourth, Aiken argues that Trial Counsel’s post-trial Motion for Judgment of
Acquittal failed to challenge his conviction for Conspiracy in the Second Degree.
The indictment for the charge of Conspiracy in the Second Degree alleged that Aiken
and Marcie conspired to commit burglaries or thefts between June 16, 2015 and June
21,2015. Aiken was acquitted of those underlying burglaries and thefts. The Cox
Burglary and the Elliott Burglary occurred later, on July 13, 2015. Thus, Aiken’s

Motion argues that he could not be convicted of conspiracy to commit any of the

30
underlying burglaries or thefts in June 2015. J disagree. Conspiracy to commit
crimes is a separate and distinct offense from the underlying crimes themselves.*!
I instructed the jury on the three elements of the conspiracy charge in this case

as follows:

“(1) that the defendant intended, that is, it was his conscious
object or purpose to promote or to facilitate, the commission of a felony
of felonies: in this case, burglary in the second degree or theft greater
than $1500";

(2) that the defendant agreed with another person, Marcie
Mauzak, that they or one of them would engage in conduct constituting
burglary in the second degree or theft greater than $1,500"; and,

(3) that the defendant or another person with whom he
conspired, allegedly Marcie Mauzak, committed an overt act or acts in
pursuance of the conspiracy.”

I further instructed the jury:
“If the State has alleged more than one overt act in pursuance of the
conspiracy, the jury must be unanimous as to at least one overt act.”
The elements of the crime of conspiracy are different from the elements of the
underlying crimes. It is not an element of conspiracy that you have to be convicted
of the offense that is the object of the conspiracy in order to be convicted of the

conspiracy.

 

41 Broomer v. State, 126 A.3d 1110 (Del. 2015), citing Younger v. State, 979 A.2d 1112 (Del.
2009) and Holland vy. State, 744 A.2d 980 (Del. 2000),

31
Aiken argues that the State, in its Response to his Motion, does not identify
the evidence supporting his conviction for Conspiracy in the Second Degree. This
is Aiken’s Motion. The burden is on him to comb through the evidence, identify it,
and argue that there is insufficient evidence to support his conviction. Aiken has
not done that. I will not do his work for him.

Cumulative Effect

The Delaware Supreme Court has recognized that the Strickland test goes to
the essential fairness of the trial’? and that multiple material errors may be “so
prejudicial to the substantial rights as to jeopardize the fairness and integrity of the
trial process.”*? The key inquiry is whether the jury’s verdict would have been the
same.“ Aiken argues that Trial Counsel’s four errors, when taken together,
prejudiced him so as to jeopardize the fairness and integrity of his trial.

I disagree. I have concluded that Trial Counsel were not ineffective and,
even if they were, their errors did not affect the outcome of the trial, either separately
or cumulatively. Aiken was convicted of the Burglaries because he was found in
possession of six pieces of distinctive jewelry related to those two burglaries, and

Marcie’s testimony regarding those Burglaries was corroborated by the testimony of

 

42 Starling v. State, 130 A.2d 316, 336 (Del. 2015).
43 Id., at 336.
44 Id., citing Kyles v. Whitley, 514 U.S. 419 (1995).

32
Cox and other evidence. Trial Counsel did a good job in this case. Aiken was

charged with a number of burglaries and was only convicted of two of them: the

Burglaries where the State had firmly convincing evidence of his guilt.

Therefore, for the reasons set forth above, I find that the Motion for

Postconviction Relief must be DENIED.

IT IS SO ORDERED.
Very truly yours,
E. Scott Bradley
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