               IN THE SUPREME COURT OF THE STATE OF DELAWARE

JAMEL DANIELS,                           §
                                         §
          Defendant Below,               §   No. 474, 2014
          Appellant,                     §
                                         §
          v.                             §   Court Below—Superior Court
                                         §   of the State of Delaware,
STATE OF DELAWARE,                       §   in and for New Castle County
                                         §   Cr. ID No. 0107003610
          Plaintiff Below,               §
          Appellee.                      §

                             Submitted: October 28, 2014
                             Decided: December 8, 2014

Before STRINE, Chief Justice, RIDGELY, and VALIHURA, Justices.

                                      ORDER

          This 8th day of December 2014, upon consideration of the appellant’s

opening brief, the appellee’s motion to affirm, and the record below, it appears to

the Court that:

          (1)    The appellant, Jamel Daniels, filed this appeal from the Superior

Court’s denial of his second motion for postconviction relief.        The State of

Delaware has filed a motion to affirm the judgment below on the ground that it is

manifest on the face of Daniels’ opening brief that his appeal is without merit. 1

We agree and affirm.


1
    Supr. Ct. R. 25(a).
         (2)     The record reflects that, in June 2003, a Superior Court jury found

Daniels guilty of Murder in the First Degree and Possession of a Firearm During

the Commission of a Felony. Daniels was sentenced to life imprisonment for

murder and an additional twenty years for the weapons offense.             This Court

affirmed the Superior Court’s judgment on direct appeal. 2

         (3)     Daniels, represented by counsel, filed his first motion for

postconviction relief on March 19, 2008 and a supplemental motion on April 30,

2010. In his motions, Daniels argued that: (i) his trial counsel provided ineffective

assistance by failing to retain an expert to conduct an independent examination of

DNA evidence on a cigarette butt found at the crime scene, failing to pursue the

discovery of exculpatory evidence, and failing to insist on a speedy trial; (ii) the

State failed to disclose that the DNA evidence was weak, failed to correct a

witness’ testimony concerning the accreditation of the Office of the Chief Medical

Examiner’s (“OCME”) laboratory, failed to produce recordings in which Daniels’

co-defendant Lou Price 3 did not implicate Daniels in the murder, failed to turn over

the statement of a witness who heard Price implicate two other individuals people

for the murder, and committed prosecutorial misconduct during closing argument;


2
    Daniels v. State, 859 A.2d 1008 (Del. 2004).
3
  Both Daniels Price were indicted for the murder of Kensworth Griffith, but were tried
separately.

                                                   2
(iii) his right to a speedy trial was violated; and (iv) his appellate counsel provided

ineffective assistance by only raising the prosecutorial misconduct claim on appeal.

On September 22, 2010, the Superior Court denied Daniels’ postconviction

motion. The Superior Court concluded that the ineffective assistance of counsel

claims were without merit and that the other claims were procedurally barred under

Superior Court Criminal Rule 61(i) (“Rule 61”) and without merit. Daniels filed a

pro se appeal and we affirmed the judgment of the Superior Court. 4

         (4)    Daniels filed his second motion for postconviction relief on August 1,

2013. In this motion and supporting memorandum, Daniels argued that: (i) his trial

counsel was ineffective because Daniels could not be convicted for Murder in the

First Degree under the State’s theory of the case and the jury instructions under 11

Del. C. §§ 271 and 274; (ii) his trial counsel was ineffective for failing to provide

contrary serological and ballistic evidence; (iii) his trial and appellate counsel were

ineffective for excluding the testimony of a witness who heard Price implicate two

other individuals people for the murder; (iv) his trial counsel was ineffective for

failing to file a motion to suppress evidence obtained after Daniels was illegally

arrested in a drug bust conducted by Pennsylvania police the night after Griffith’s




4
    Daniels v. State, 2011 WL 1900438 (Del. May 16, 2011).


                                               3
murder; 5 (v) Pennsylvania police did not have probable cause to arrest Daniels

because he was only a passenger of the car driven by the individual who was

caught selling drugs; (vi) one of Daniels’ trial attorneys was reported to smell of

alcohol during the trial and suffered from Alzheimer’s; (vii) a witness committed

perjury in testifying about the accreditation of the OCME laboratory; (viii) the

Superior Court improperly excluded or his counsel failed to include testimony of a

witness who heard Price identify other individuals for the murder of Griffith; and

(ix) the State’s confusing or mislabeled production of materials relating to a prison

informant’s communications with Price about Price’s motive for killing Griffith,

which was different than the motive that multiple witnesses testified to at trial, was

a violation of Brady v. Maryland.6

         (5)    On August 1, 2014, the Superior Court denied Daniels’ second

postconviction motion.        The Superior Court found that Daniels’ claims were

procedurally barred under Rule 61(i) and without merit. This appeal followed.




5
  Daniels, Price, and two other individuals who testified that Daniels and Price shot Griffith at
Daniels’ trial were all arrested after Price sold drugs to an undercover police officer. At that
time, Price was already a suspect in Griffith’s murder. A search of the car driven by Price and
occupied by Daniels revealed evidence that linked Griffith to the car.
6
    373 U.S. 83 (1963).


                                               4
         (6)     We review the Superior Court’s denial of postconviction relief for

abuse of discretion and questions of law de novo. 7 The procedural requirements of

Rule 61 must be considered before addressing any substantive issues.8

         (7)     Daniels does not dispute that his claims were untimely under Rule

61(i)(1), repetitive under Rule 61(i)(2), procedurally defaulted under Rule 61(i)(3),

and previously adjudicated under Rule 61(i)(4). To overcome these procedural

hurdles, Daniels primarily argues that he pled a colorable claim of a miscarriage of

justice under Rule 61(i)(5) based on the ineffective assistance of his trial counsel,

appellate counsel, and postconviction counsel. Daniels contends that his counsel

was ineffective because: (i) because they failed to investigate and present favorable

evidence; (ii) Daniels could not be convicted of Murder in the First Degree under

the State’s theory of the case and the jury instructions under 11 Del. C. §§ 271 and

274; (iii) they failed to file a motion to suppress evidence obtained after Daniels

was illegally arrested in Pennsylvania or advance an argument based on the illegal

arrest; and (iv) they failed to challenge the testimony of a State witness who

committed perjury regarding the accreditation of the OCME laboratory and who

was overseen by the recently terminated director of the OCME. Daniels also

claims that the State failed to turn over exculpatory material referring to a prison

7
    Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
8
    Younger v. State, 580 A.2d 552, 554 (Del. 1990).


                                                 5
informant’s communications with Price about Price’s motive for killing Griffith.

Any claims that Daniels raised in the Superior Court, but failed to argue in his

opening brief are waived. 9

         (8)     To prevail on an ineffective assistance of counsel claim, a defendant

must show that his counsel’s representation fell below an objective standard of

reasonableness and that, but for his counsel’s unprofessional errors, there is a

reasonable probability that the outcome of the proceedings would have been

different.10 Conclusory and unsupported claims of prejudice are insufficient to

establish ineffective assistance; a defendant must make and substantiate concrete

claims of actual prejudice.11 Daniels does not make or substantiate any concrete

claims of actual prejudice in support of his conclusory claim that his counsel failed

to investigate and present favorable evidence. Multiple witnesses testified that

Daniels was Price’s right-hand man, there was eyewitness testimony that Daniels

shot Price, and Daniels’ DNA appeared on a cigarette butt at the scene of the

murder. Daniels identifies nothing his counsel should have discovered that raises a

reasonable probability of a different outcome.



9
    Del. Supr. Ct. R. 14(b)(vi)(A)(3); Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993).
10
     Strickland v. Washington, 466 U.S. 668, 688-92 (1984).
11
     Dawson v. State, 673 A.2d at 1196.


                                                 6
      (9)    As far as his claim that his counsel failed to recognize or argue that he

could not be convicted of Murder in the First Degree, Daniels is mistaken in his

belief that he could only be convicted under an accomplice theory of liability. The

State requested jury instructions on accomplice liability, but Daniels’ counsel

objected. The Superior Court found there was no evidentiary basis for accomplice

liability instructions because the State presented evidence at trial that both Price

and Daniels shot Griffith.

      (10) In arguing that his counsel should have moved to suppress evidence

obtained after Price was illegally arrested in Pennsylvania or make an argument

based on his illegal arrest, Daniels ignores the events leading to the identification

of his DNA on a cigarette butt at the scene of the murder and his identity as one of

the shooters. Multiple witnesses identified Price as a suspect in Griffith’s murder

and Daniels as Price’s right-hand man. Police also determined that Price and

Daniels smoked cigarettes, but that the other individuals in Price’s car the night

after the shooting did not smoke cigarettes. Based on this information, police

obtained a search warrant for a blood sample from Daniels and matched the sample

to DNA on the cigarette butt. There was also eyewitness testimony that Daniels

shot Griffith. Daniels has thus failed to substantiate any concrete allegations of

actual prejudice resulting from the lack of a motion to suppress or argument based

on illegal arrest (even assuming there was a basis for such a motion or argument).


                                          7
          (11) Daniels’ claim that his counsel should have challenged the credibility

of an OCME witness who testified in 2003 because she was overseen by someone

who was terminated in 2014 was not raised in the Superior Court and will not be

considered for the first time on appeal.12 Daniels also claims that his counsel failed

to challenge the witness’ alleged perjury regarding the accreditation of the OCME

laboratory. This claim is not supported by the record. The accreditation issue was

raised by Daniels’ counsel in his first postconviction motion and rejected by the

Superior Court.

          (12) The emails offered by Daniels in support of this claim suggest, at

most, that the OCME laboratory was accredited by Forensic Quality Services

rather than National Forensic Science Technology. Daniels has not substantiated

any concrete claims of actual prejudice that he suffered as a result of his trial

counsel and appellate counsel not discovering this minor mistake. Under these

circumstances, Daniels’ ineffective assistance of counsel claims do not constitute a

colorable claim of a miscarriage of justice under Rule 61(i)(5).

          (13) Turning to Daniels’ Brady claim, it appears from the record that

materials relating to a prison informant’s communications with Price were turned

over to Daniels’ counsel. The materials reflect that one of Price’s reasons for

killing Griffith was that Griffith knew of another murder committed by Price. At

12
     Supr. Ct. R. 8.


                                           8
trial, multiple witnesses testified that Price killed Griffith because Griffith owed

him money. Given the testimony that Daniels was Price’s right-hand man and shot

Griffith, it is highly unlikely that evidence of Price having another motive to kill

Griffith would have had any impact on the outcome of the trial. Daniels thus fails

to state a colorable claim of a miscarriage of justice based on this evidence.

          (14) To the extent Daniels tries to argue that all or some of his claims

should be reconsidered in the interest of justice under Rule 61(i)(4), he fails to

offer any arguments in support of this claim. An appellant must state the merits of

an argument in his opening brief or that argument will be waived. 13 Daniels fails

to state the merits of this argument and has therefore waived it. 14

          NOW, THEREFORE, IT IS ORDERED that motion to affirm is GRANTED

and the judgment of the Superior Court is AFFIRMED.



                                          BY THE COURT:

                                          /s/ Karen L. Valihura
                                                 Justice




13
     Del. Supr. Ct. R. 14(b)(vi)(A)(3).
14
     Murphy v. State, 632 A.2d at 1152.


                                            9
