IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

Plaintiff, )

)

)

V ) Cr. ID. No. 0909018475A & B

)

)

)

MICHAEL WASHINGTON, )
)

Defendant. )

Date Submitted: June 15, 2016
Date decided: September 27, 2016

COMMISSIONER’S REPORT AND RECOMMENDATION ON
DEFENDANT’S PRO SE MOTION FOR POSTCONVICTION RELIEF
AND RULE 61 COUNSEL’S MOTION TO WITHDRAW

Karin M. Volker, Esquire, Deputy Attorney General, Delaware Depal'tment of
Justice, 820 N. French St. 7th Floor, Cl'iminal Division, Wilmington, Delaware,

19801, Attorney for the State.

Andrew J. Witherell, Esquire, 100 East 14th Street, Wilmington, Delaware 19801,
Attorney for the Defendant.

Michael Washington, pro se.

MANNING, Commissioner

This 27th day of September, 2016, upon consideration of defendant Michael
Washington’s Amended Motion for Postconviction Relief (“Motion”), l find and

recommend the following:
FACTS

The facts of this case, as summarized by the Delaware Supreme Court in

Washington’s direct appeal, are as folloWs:

lt appears from the record that Francis and Guy Were found shot to
death on September l, 2008 (hereinafter “the shooting”) in the front
seat of a bullet-ridden black LeXus (hereinafter “the vehicle”) in the
500 block of E. 10th Street. The first police officer to arrive at the
scene found the vehicle stopped in the middle of traffic, still in gear
and Wedged against another car.

Detective John Ciritella of the Wilmington Police Department
(hereinafter “Ciritella”) Was assigned to investigate the shooting. As
the investigation unfolded, Ciritella theorized that the shooting
occurred from inside the vehicle as it Was leaving the 700 block of E.
10th Street and that the vehicle continued moving until it came to a
stop in the 500 block.

Ciritella recovered a significant number of bullets, bullet fragments
and/or shell casings, from the interior of the vehicle, the 700 block of
E. 10th Street, and the victims' bodies following the medical
examiner's autopsies. Ciritella did not, however, recover a Weapon
that Was used in the shooting.

At trial, Ciritella testified that initially and for several months after the
shooting, he could not develop a lead on a suspect. Finally, however,
in April 2009, Ciritella Was advised that an inmate in federal custody,
Christopher Waterman, Was interested in disclosing information about
the shooting that he had allegedly heard from another inmate. The
other inmate turned out to be Washington. Similarly, in May 2009 and
December 2009, Ciritella learned that inmates William Coleman and

lsaiah Fields also wanted to disclose information that another inmate,
again Washington, purportedly told each of them about the shooting.
Ciritella conducted individual one-on-one interviews with Waterman,
Coleman and Fields. As a result of those interviews, Ciritella learned
that between the fall of 2008 and the spring of 2009, Washington
allegedly individually told Waterman, Coleman and Fields at different
times that he was either in the vehicle during the shooting or that he
was the shooter, and that the weapon involved in the shooting was a
“Mac 10,” which Ciritella knew was a candidate weapon. Ciritella
also learned from Waterman, Coleman and Fields that the shooting
was possibly the result of a botched robbery or a dispute over a drug
deal, and that the gun had discharged unexpectedly in the vehicle.

Ciritella learned additional information from Coleman about
Washington's possible involvement in the shooting, namely that
Washington was worried that a resident of the 700 block of E. 10th
Street, April Gardner, had witnessed the shooting. Moreover, Fields
told Ciritella that he was with Washington in June or July 2008 at 930
Spruce Street, a drug hangout, when the “Mac 10” Washington was
holding suddenly went off and sprayed gunfire.

As a result of his interview with Fields, Ciritella obtained a search
warrant for 930 Spruce Street and in the ensuing search found a
number of bullet holes in the floor and walls from which he recovered
three bullets. From his interview with Coleman, Ciritella was able to
locate Gardner at her 729 E. 10th Street home. Gardner told Ciritella
that she witnessed the events leading to the shooting on September l,
2008 from the front steps of her home.

At trial, Gardner testified that, prior to the shooting, she was outside
sitting on her front steps watching her grandson ride his bicycle when
she observed Washington and another male_-later identified as
Guy-walking down 10th Street. Gardner told the jury that she knew
Washington because he had grown up in the neighborhood and had
gone to school with her children.

Gardner testified that she observed Washington and his companion
approach another man who was sitting in the driver's seat of a vehicle
that was parked directly in front of her house. According to Gardner,
after the three men conversed briefly, Guy got into the right front

passenger seat of the vehicle and Washington got into the right rear
passenger seat.

Gardner testified that moments after the two men entered the vehicle
the vehicle's windows “erupted.” Shocked by the explosion, Gardner
said, she immediately “grabbed [her] grandson” and ran to her
daughter's house around the corner on Bennett Street where she
remained for several hours before returning home. Gardner testified
that as she ran from the scene, she could feel shards of glass getting
caught in her hair, and that she had “glass all in [her] hair” when she
reached her daughter's house. Gardner further testified that
Washington came to her home later that evening “to apologize,” but
that she refused to speak to him.

At trial, the State's ballistics expert, Delaware State Police Firearms
Examiner Carl Rone (hereinafter “Rone”), opined that the strafing of
the vehicle's interior was the result of a semi-automatic or automatic
weapon discharging more than thirty rounds inside the vehicle from
the area of the right rear passenger seat. Rone further opined that the
sixteen bullets and thirty spent shell casings he examined, which were
recovered from the vehicle, the victims' bodies, and 930 Spruce Street,
all came from the same semi-automatic or automatic weapon.

Washington testified at trial that he visited “Miss April” later in the
evening on September l, 2008, because he was sorry to hear that
Leighton and Francis had been shot in front of her house, and that she
had witnessed the shooting. Washington also testified that, a few days
prior to the shooting, he had a conversation with Leighton and Guy,
while in the vehicle, about a gun his cousin wanted to sell. According
to Washington, the gun he was helping his cousin sell “hold[s] 30
rounds” and was “the same gun that went off in the house [on] 930
Spruce Street.” Washington denied any involvement in the shooting,
however, and he testified that at the time of the shooting he was
“cooking up some drugs” at 930 Spruce Street.

Washington v. State, 20ll WL 4908250 (Del. October l4, 2011).

Procedural Histol_'y

Washington was arrested on September 28, 2009, and charged with two
counts of Murder First Degree, two counts of Attempted Robbery First Degree,
two counts of Possession of a Firearm During the Commission of a Felony and
Possession of a Deadly Weapon by a Person Prohibited.l Following a nine day
jury trial, Washington was found guilty on November ll, 2010, of two counts of
Manslaughter and two counts of Possession of a Firearm by a Person Prohibited.
Washington was found not guilty of the Attempted Robbery Charges.
Washington was sentenced on February ll, 20ll, to an aggregate of 86 years at
Level V, suspended after 66 years, followed by decreasing levels of probation.

Washington appealed his conviction to the Delaware Supreme Court. Trial
Counsel represented Washington on appeal but filed a motion to withdraw
pursuant to Supreme Court Rule 26(0). On appeal, Washington raised two issues:
(l) that the prosecutor committed misconduct when she made reference to a cell
phone call during her opening statement that was never introduced at trial, and (2)
that the State’s ballistic expert testified at trial, contrary to his written report, that
bullet fragments recovered in the 700 block of E. 10th street “matched” those

recovered from the victim’s bodies.

 

1 The Possession of a Deadly Weapon by a Person Prohibited charge was severed prior to trial
and constitutes the “B” case. Washington was convicted of this charge in a bench ruling
following the jury trial on November 15, 2010. D.I. 46.

By Order dated October l4, 20ll, the Delaware Supreme Court rejected
Washington’s arguments as meritless and upheld his convictions2 Washington
then filed a timely pro se motion for postconviction relief pursuant to Super. Ct.
Crim. Rule 61 on March 7, 2012.3 Washington’s Motion was originally assigned
to Commissioner Reynolds, who retired while the matter was pending. Following
the standard practice, Trial Counsel filed affidavits in responses to Washington’s
claims on April 20, 2012,4 and May l, 2012.5 On May 8, 2012, Washington filed a
“Motion to Amend Grounds and Expand the Record.”6 Over Trial Counsel’s
objections, Commissioner Reynolds granted Washington’s request on May ll,
2012. Washington filed his Amended Motion for Postconviction Relief
(hereinafter also the “Motion”) on August 7, 2012.7 On September l7, 2012,
Trial Counsel filed new Affidavits in response to Washington’s Amended Motion.8

On October 31, 2012, the State filed its Response to Washington’s Amended

 

2 Washington, 2011 WL 4908250.
3 D.I. 64.
4 D.I. 70.
5 D.I. 71.
6 D.I. 72.
7 D.i. 77.

8 D.I. 82.

Motion.9 On January 9, 2013, Washington filed his Reply to the State’s
Response.10 On February 25, 2013, while his motion was pending decision,
Washington filed a Motion for Appointment of Counsel. Commissioner Reynolds
denied this motion on April 30, 2013.11

On July ll, 20l3, in light of the Delaware Supreme Court’s recent decision
in Holmes v. State,12 This Court, sua sponta, vacated its April 30, 2013 ruling, and
ordered that counsel be appointed to assist Washington with his Motion. Counsel
was appointed on August 26, 2013. However, on April 30, 2014, counsel advised
the Court that after spending considerable time working on the case, he discovered
that he had a conflict of interest and asked to withdraw from representing
Washington. On July 15, 2014, new counsel was appointed for Washington;
however, this attorney also moved to withdraw due to a conflict of interest.13
Ultimately, Andrew Witherell was appointed to represent Washington on his
Motion. After a number of extensions to allow Rule 6l Counsel time to review the

case, l\/Ir. Witherell filed a Motion to Withdraw as Counsel on July l7, 2015,

 

9 D.l. 86.
1° D.I. 90.
11 D.l. 98.
12 2013 WL 2297072(De1.1\/1ay 23, 2013).

13 D.I. 112.

concluding that there were no meritorious issues he could advocate on
Washington’s behalf.14

On July 22, 2015, l wrote Washington and advised him that he had 30 days
to file a response to Mr. Witherell’s Motion to Withdraw. On August 10, 2015,
Washington wrote and advised the Court that Mr. Witherell, despite being
appointed counsel, had filed a motion to withdraw without ever having personally
spoken with him. ln light of this allegation, and in order to be satisfied that Mr.
Witherell had fully reviewed Washington’s case, l instructed Mr. Witherell to file
an affidavit with the Court outlining, in detail, what work he did in connection with
Washington’s case prior to filing his motion to withdraw.15 Mr. Witherell filed his
affidavit on November 15, 2015. l have reviewed Mr. Witherell’s affidavit and I
am satisfied he thoroughly reviewed Washington’s case prior to filing the motion
to withdraw. Although it is certainly the best practice for a lawyer to meet his or
her client face-to-face before filing a motion to withdraw, Washington was not
prejudiced by Mr. Witherell’s actions. However, because of this unusual
occurrence, l allowed Washington extra time, at his request, to hire a private

investigator and to amend or supplement his Rule 61 claims thereafter.16

 

14 D.l. 125.
15 D.I. 129.

16 D.I. 138.

M

Since filing his first Rule 6l motion on March 7, 2012, Washington has
inundated the Court with letters and various other filings seeking to amend, expand
and supplement his various Rule 6l claims. However, in a letter to the Court dated
March 20, 2016, Washington instructed the Court to “only view the (4) issues on
my Amended Motion and these (3) claims I’m supplementing. l did however
provided [sic] other claims with my Amended Motion l thought had merit. But as
of now I want you to ignore them as irrelevant when conducting your
investigation.”17

Pursuant to Rule 61(b)(6), a motion for postconviction may be amended
anytime “before a response is filed or thereafter by leave of court, which shall be
freely given when justice so requires.” Considering the unique and tortured
procedural history of this case, and the fact that Washington is serving what is
tantamount to a life sentence, l have allowed Washington additional time to
conduct further investigations and amend his claims as l believe it is in the interest
of justice to do so. Finally, l note that on April ll, 2016, I forward to the State a
copy of Washington’s final Amended Motion and Supplemental Claims and

offered the State an opportunity to reply_the State declined. On April 28, 2016,

Washington filed yet another letter with the Court expounding upon his Rule 61

 

17Ia1

claims. Although l have reviewed this letter, it is largely redundant and a
recapitulation of the arguments he has already made in previous filings.

Based upon my review of Washington’s Motion and a thorough review of
the complete trial transcripts, I do not see the need f`or an evidentiary hearing. In
my opinion, the arguments made by Washington in his Amended l\/lotion18 and
Supplemental Claims, can be adequately addressed with the factual record created
at trial,

l have summarized Washington’s amended and supplemental claims for
postconviction relief, in his own words, as follows:

Ground One: Trial Counsel was ineffective for failing to move to suppress
the out-of-court hearsay statements of the State’s witnesses19

Ground Two: The Prosecutor committed plain error through the
manipulation of facts mislead the jury as to the conditions of Christopher
Watennan’s federal plea agreement20

Ground Three: The Prosecution committed plain error denying the
defendant the right to a fair trial by manipulating trial evidence and

vouching f`or the State’s witnesses21

Ground Four: Trial Court committed plain error by allowing Detective
Ciritella to testify as an expert on the State’s forensic evidence22

 

18 D.I. 139.
19 D.l. 77 ar 1.
20 1a 4.

21161.6.

Supplemental Claim One: The prosecution improperly interjected into the
trial information regarding where the shooter was seated in the vehicle that
was not factually supported based on the testimony of the State’s ballistic
expert, Carl Rone.23

Supplemental C|aim Two: Prosecutorial Misconduct. The State improperly
argued that the two bullet fragments recovered by Det. Ciiritella from in
f1ont of April Gardner s house had been fired from the same gun as that used
to kill the victims was improper and unsupported by expert testimony. 24

Supplemental C]aim Three: The Court abused its discretion and deprived

defendant of the right to adequately cross-examine the State’s expert witness
following a jury view of the actual vehicle in which the victims were

kill@d.25

Legal Standard

To prevail on an ineffective assistance of counsel claim, a defendant must
meet the two-pronged Strickland test by showing that: (l) counsel performed at a
level “below an objective standard of reasonableness” and that, (2) the deficient
performance prejudiced the defense.26 The first prong requires the defendant to
show by a preponderance of the evidence that defense counsel was not reasonably

competent, while the second prong requires the defendant to show that there is a

 

22 1a 7.

21 D.l. 139 at (1).
24 1a (4).

251d. ***(1)***.

26 Srrickland v. Washington, 466 U.s. 668, 687-88, 694 (1984).

10

reasonable probability that, but for defense counsel’s unprofessional errors, the
outcome of the proceedings would have been different27

When a court examines a claim of ineffective assistance of counsel, it may
address either prong first; where one prong is not met, the claim may be rejected
without contemplating the other prong.28 Mere allegations of ineffectiveness will
not suffice; instead, a defendant must make and substantiate concrete allegations of
actual prejudice.29 An error by defense counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of conviction if the error
had no effect on the judgment30 Before a court will reverse a conviction for
ineffective assistance of counsel, the petitioner must prove that the likelihood of a
different result, but for trial counsel’s errors, is substantial and not just
conceivable31

ln considering post-trial attacks on counsel, Stricklana’ cautions that trial
counsel’s performance should be reviewed from his or her perspective at the time

. . . 32 . .
dec1s10ns were be1ng made. A fa1r assessment of attorney performance requlres

 

27 Id
28 1a a1697.
29 rounger v. Sra¢e, 580 A.2d 552, 556 (Del. 1990).

30 Srricklana, 466 U.s.at 691.

31 Neal v. State, 80 A.3d 935, 942 (Del. 2013) (internal quotations and citations omitted).

321d

ll

that every effort be made to eliminate the distorting efforts of hindsight Second
guessing or “Monday morning quarterbacking” should be avoided. 33

The procedural requirements of Superior Court Criminal Rule 61 must be
addressed before considering the merits of any argument34 Although
Washington’s original Motion was timely filed, aspects of his claims are
procedurally barred under Rule 6l(i)(l) - (4).35 I will address the procedural bars
and merits of each of Washington’s claims in seriatim.

Ground One

Washington claims that he received ineffective assistance of counsel because
trial counsel failed to file motions to suppress the statements of lsaiah Fields and
William Coleman, Washington claims that Fields’ statement was inadmissible
pursuant to D.R.E. 403 and 404(b)(3) and (4). Washington also claims that both
Coleman and Field’s statements were inadmissible pursuant to ll Del. C. § 3507.

At the outset, l note that neither Fields nor Coleman’s statements were
introduced pursuant to ll Del. C. § 3507. The only testimony the State offered

thru Fields and Coleman was live, in-court testimony.

 

33 lai
34 See Younger, 580 A.2d at 554.

35 Washington’s claims will be evaluated under Super. Ct. Crim. Rule 61 as it existed on the date
his Motion was first filed.

12

Washington’s complaint regarding Field’s statement centers on testimony
that while Fields was with Washington in June or July of 2008, at 930 Spruce
Street, he observed Washington with a Mac-lO handgun. Fields testified that while
Washington was “playing with [the gun] it went off” and that the police might find
bullet holes in the wall.36 Fields had shared this information with Det. Ciritella
who then located patched-up bullet holes in the floor and wall as predicted by
Fields. Washington’s argument that this statement is inadmissible is wholly
meritless First, the statement is highly relevant as it ties Washington to a weapon
capable of quickly firing 30 rounds_a candidate murder Weapon. The fact that the
evidence is prejudicial does not make it inadmissible Rule 403 only requires
exclusion of evidence if the “probative value is substantially outweighed by the
danger of unfair prejudice.” It is understandable that Washington views this
evidence as prejudicially, for it clearly is. However, based on the facts of the case,
it is not unfairly prejudicial

Washington next argues that “Fields’ statement was to prove one thing and
one thing only, and that was to prove the character of the defendant strictly against
the letter and spirit of D.R.E. 404(b).”37 This argument is also meritless. The jury

was not aware, until he testified at least, that Washington had a criminal record or

 

26 rriai T. 10/7/2010 ar 177.

32 D.l. 77 at 1 _2.

13

might be a person prohibited from owning or possessing a firearm. Therefore, the
fact that Washington had possessed a firearm or that it accidently “went off” was
not in and of itself, a “bad act.” Additionally, the evidence was not offered for an
improper purpose, such as to show Washington’s general criminal disposition_it
was offered to show that he had been in possession of the same Weapon later used
to kill the two victims. Finally, because the evidence does not rise to the level of a
“bad act,” the trial court was not required to conduct a 404(b) balancing test prior
to allowing it into evidence.38

Trial Counsel had no meritorious basis upon which to object to this portion
of Fields’ or Waterman’s testimony. My review of the trial transcripts reveals that
Trial Counsel conducted a thorough and vigorous cross-examination of all the
State’s witnesses. ln fact, Trial Counsel went so far as to voir dire Coleman
outside the presence of the jury to ensure that nothing he was going to testify to
was hearsay.39 Trial Counsel was not deficient for failing to object or move to
suppress Fields’ or Coleman’s statements_there was no basis to do so.

Ground Two

Washington argues that the State committed misconduct by “manipulation of

facts and misleading the jury as to the conditions of Christopher Waterman’s

 

26 see Ge¢z v. stare, 538 A.2d 726 (Del. 1988).

39 Trial T. 10/27/2010 at 71.

14

federal plea.” In support his argument, Washington: (l) quotes a portion of the
prosecutor’s summation regarding Waterman’s plea agreement, (2) notes that the
State never produced the plea agreement itself, and (3) states that the plea
agreement was not signed by Waterman.40 In summary fashion, Washington also
claims that the “exact nature of the plea” was not disclosed.41

A reading of Waterman and Det. Ciritella’s testimony makes abundantly
clear the facts of the plea agreement and Waterman’s motive to testify_he wanted
a deal for the information he had. Trial Counsel explored his plea agreement,
cooperation, possible sentence and motivation to testify in great detail. lt would
have been clear to everyone in the courtroom that Waterman was not there as a
“good Samaritan”_he was there only to help himself The fact that the State did
not introduce Waterman’s plea agreement into evidence is of no import_the

42 Additionaiiy, my review

defense did as part of Waterman’s cross-examination
of the plea agreement entered into evidence by Trial Counsel reveals that it was in
fact signed by Waterman and all other parties.43 Nothing the prosecutor said

during her summation was in any way a manipulation or mischaracterization of the

evidence regarding the plea agreement The Prosecutor merely highlighted the fact

 

411 D.I. 77 614
31 1a 5.
42 Defense Exhibit l.

43 1a

15

that Waterman was not given any type of specific promise or deal for his
testimony. Rather, she acknowledged that he could avoid a substantial amount of
jail time by cooperating and that he was required to testify truthfully.44 Waterman’s
credibility was front and center for the jury to decide.

Because Washington could have raised this issue on his direct appeal, but
did not, it is procedurally barred under Rule 61(i)(3). Furthermore, Washington
has not shown cause for this procedural default, nor has he shown any prejudice
This claim is meritless and should be denied.

Ground Three

Washington argues that the State committed plain error, denying him the
right to a fair trial, by manipulating trial evidence and vouching for the State’s
witnesses Washington appears to argue that the Prosecutor made factual
assertions in her opening statement that were not supported by the evidence, nor
proven at trial. Washington does not point to any specific statements in his
Motion; rather, he summarizes the State’s opening statement in outline form. As
best l can tell, Washington is claiming that the State committed error by arguing to
the jury that the murders where the result of a robbery gone wrong and that the

victims were killed intentionally.

 

66 Trial T. 11/9/2010 ar 152.

16

Based upon my review of the State’s opening statement, l am satisfied that
the State’s theory of the case, and what it argued to the jury, was reasonable based
on the evidence the State introduce. Admittedly, evidence was adduced during
trial that contradicted the State’s theory (i.e. the Mac-lO accidently discharged).
Nevertheless, a prosecutor is allowed to present and argue all reasonable inferences
that flow from the evidence.45 ln this case, the evidence reasonably supported the
theory of an inchoate robbery or drug deal, interrupted by two intentional murders.
The fact that the jury ultimately rejected the State’s theory of robbery and
intentional murder does not make the State’s opening statement misleading or
unfair. Rather, it shows that the jury carefully considered all the evidence and had
a reasonable doubt as to aspects of the State’s case. Therefore, this claim is
without merit and it is also procedurally barred under Rule 61(i)(3) because it was
not raised on direct appeal.

Ground Four

Washington argues that the trial court committed plan error by allowing Det.
Ciritella to testify as an expert on the State’s forensics. While it is true that Det.
Ciritella summarized some of the forensic evidence during his initial testimony,46 it

did not prejudice Washington. The State properly introduced all forensic evidence

 

45 See Dariiels v. State, 859 A.2d 1008, 1011 (Del. 2004) (quoting Hooks v. State, 416 A.2d 189,
204 (Del. 1980)); see also Boatson v. State, 457 A.2d 738, 742 (Del. 1983).

66 Trial T. 10/26/2010 at 101.

17

through the appropriate expert witnesses later in the trial, Trial Counsel also made
a timely objection to Det. Ciritella’s testimony, which was sustained by the
Court.47 This claim is without merit. Additionally, because Washington could
have raised this claim on his direct appeal, but did not, it is procedurally barred
under Rule 61(i)(3).
Supplemental Claim One

Washington next argues that the State improperly interjected into the trial
information regarding where the shooter was seated in the vehicle and that this
statement was not factually supported by the testimony of the State’s ballistic
expert, Carl Rone. More specifically, Washington is disputing the Prosecutors
comment in her summation that Rone testified that anyone who was seated in the

t ,,48

rear driver’s side passenger seat “would have been sho Washington argues

49 the prosecutors’ unsupported and misleading

that under Hughes v. Staie,
comment prejudiced his case and amounted to a deprivation of his rights. As noted
by Washington, this comment was not objected to by Trial Counsel.

l view Washington’s argument as an amalgam of prosecutorial misconduct

and a failure of his trial counsel to object. As cited by Washington, the Hughes

test is inapplicable as it only applies “once a prosecutor's comment or act is

 

62 ld.
68 Triai T. 11/9/2010 ar 63.

63 437 A.zd 559 (Del. 1981).

18

deemed improper.”50 No matter how Washington’s claim is couched, it should be
denied as procedurally barred under Rule 6l(i)(3), and meritless.

The evidence in this case showed that 30 rounds of 9mm ammunition were
discharged, most likely in fully automatic mode, from the back seat of the vehicle.
The interior of the passenger compartment was literally riddled with bullet holes
and the passenger side windows were shot out. Logic dictates that since the front
two seats of the car were occupied by the deceased victims, who had both been
shot from behind, and all the firing came from inside the car, the shooter must have
been seated in the backseat. In fact, Rone testified to this very point, stating that
the shooter was seated on the rear passenger side.51

Gardner testified that prior to the shooting she observed a car parked in front
of her house and “[there] was a guy in the driver’s seat.”52 Gardener testified that
she observed Washington and an unknown man approach the car. She observed
the unknown man enter the front passenger seat while Washignton waited nearby.
Gardner then testified that the unknown person exited the car, approached

Washington, and that after a brief conversation, Washington “got in the back seat

 

50 Gregory v. State, 2011 WL 4985654, *4 (Del. October 19, 2011).

51r11111T.11/1/2010 3161

32 Trial T. 10/27/2010 at 127.

19

of the car while the [unknown] guy got in the passenger side.”53 Although Gardner
did not explicitly state that it was the rear passenger side, it is a reasonable
inference in light of her testimony and vantage point at the time.

The Prosecutor’s argument that a person seated on the driver’s side
passenger seat “would have been shot” was not an unreasonable extrapolation from
the ballistic evidence. The simple fact is, all of the evidence indicates that the
shooter was on the rear passenger side of the car. The fact that the Prosecutor
attributed this statement to Rone, albeit inaccurately as far as l can tell, does not
appear to have prejudiced Washington in any way. My review of the photos of the
interior of the car reveals that three bullets passed through the rear passenger seat
cushion on the driver’s side.54 lt is obvious based on the trajectory rods visible in
the photo that anyone seated on that side would have been struck by the bullets.
Accordingly, Trial Counsel’s failure to object to the prosecutor’s comment was not
unreasonable and did not prejudice Washington.

Supplemental Claim Two

Washington argues that the State committed prosecutorial misconduct when

it improperly argued to the jury that the two copper bullet fragments recovered by

Det. Ciritella were fired from the same gun used to kill Guy and Leighton.

 

53 1a 128.

36 states Exhibit 21 (picture).

20

Washington argues that this statement was improper because “do [sic] to the fact
that expert Rone never confirmed that the [two] copper fragments [were] fired
from the same weapon amounted to a testimony of an [unsworn] witness.”55
Washington also cites to the Delaware Supreme Court decision in his appeal as
support for his claim. ln its decision, the Supreme Court noted that “[i]t does not
appear that Rone testified about bullet fragments that were recovered from the 700
block of E. 10th Street.”56

After carefully reviewing the trial transcripts and the actual evidence
submitted in this case, l have concluded that Washington’s assertion is incorrect.
The two bullets recovered by Det. Ciritella from the 700 block of E 10th Street
were tested by Rone against the bullets and fragments recovered from the victim’s
bodies and the house at 930 Spruce Street. Washington’s misapprehension lies in
the fact that Rone’s report does not delineate the specific location each item was
recovered from. Rather, Rone’s report merely indicates that he tested a total of 30
cartridge casing, 11 bullets and eight bullet fragments.

l have reviewed the physical evidence entered at trial and it matches Rone’s

report. State’s Exhibit 98 contains eight bullets and ll bullet fragments. The

evidence collection bags indicate that State’s Exhibit 98R and 98S are the two

 

33 D.i. 140 31(5).

36 Washington, 2011 WL 4908250, at *4.

21

bullets recovered from the “700 BLK of E 10th St.” on “9/2/2010”-near where
April Gardner was seated. The back of the evidence collection bags for State’s
Exhibit 98R and 98S are both labeled “Lab # 080591,” which is Rone’s report of
April 8, 2010. The three bullets recovered from 930 Spruce St. were entered into
evidence as State’s Exhibit 99, and are listed separately in Rone’s report dated

March 25, 2010.

At trial, Rone testified that “[a]ll of the bullets were fired from the same

1157

firearm, all the casings were fired from the same firearm. Rone’s use of the

term “all” is admittedly not as precise as it could have been, but upon review of the
physical evidence and his report, it is clear that by his testimony he was describing
all 19 bullets and fragments from all three locations. However, Rone does admit
that he cannot say, based on the ballistic comparison he conducted, that the same
gun fired the bullets ana’ shell casings because he does not have a firearm to

58 Nevertheless, based on the physical evidence

compare both specimens against.
and Rone’s testimony, the two bullets fragments recovered by Det. Ciritella from
700 block of E 10th street, were tested, and that testing indicated that they were

fired from the same gun as the bullets removed from the victim’s bodies and the

bullets recovered from 930 Spruce St. Accordingly, Washington’s claim is without

 

31 Trial T. 11/1/2010 31113.

33 Id.

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merit. Washington’s claim is also procedurally barred under Rule 61(1)(4) because
it was raised on his direct appeal.
Supplemental Claim Three

During trial, the jury was escorted down to the courthouse sally port for a
view of the actual vehicle where the victims were found dead. During the jury
view Washington was seated nearby in a DOC van. After the jury view,
Washington complained to the Judge that he could not see the vehicle from the
DOC van where he had been seated.59 The Judge then instructed the State to have
the car brought back over to the courthouse so Washington could view it; which he
did.

However, Washington takes issue with the jury view. After he was given a
chance to view the vehicle, Washington argues that “there was several questions [l]
wanted to ask expert witness Mr. Rone during cross examination but was denied
the right because Mr. Rone was dismiss[ed] and [the] [S]tate rested.”60

First, l note that the fact that the State rested its case before Washington had
an opportunity to view the car is irrelevant. lf they felt it necessary, Trial Counsel
could have called Rone as a witness in its case to ask any additional or follow-up

questions.

 

59 Trial T. 11/1/2010 at 129-130.

66 1a Pg(2).

23

Washington states that he wanted the following questions asked: (l) “[t]he
vehicle was clean[ed] out and the driver and passenger seat[s] was move[ed] up
and down and back and forth prior to insertion of the trajectory rods[,] will that
effect the opinion on where the shooting may have took place,” and (2)
“[c]onsidering all the impact rounds discovered within the vehicle what is the
opinion on the possible people that could have been seated inside during the
shooting.” Washington states “these are (2) of the many questions he wanted to
ask Mr. Rone on cross examination once he view[ed] the vehicle.”

No matter if couched as prosecutorial misconduct or an abuse of discretion
by the trial court, Washington’s claims must fail because they are procedurally
barred under Rule 61(i)(3). Washington could have raised this claim previously,
but did not.

Under the banner of ineffective assistance of counsel, Washington’s claim
fails because he has not shown that Trial Counsel’s performance was deficient in
any way. Nor has Washington shown that the outcome of the trial would have
been different had these specific questions been asked_by anyone. Trial Counsel
is vested with wide latitude in conducting cross examination and deciding what
questions to ask, or not ask.61 My review of the trial transcripts reveals that Rone

was subjected to a lengthy and vigorous cross examination. Washington’s first

 

61 stare v. Powell, 2016 WL 3023740 at *11 (Del. super. May 24, 2016)

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question is based on the premise that the seats in the car were moved prior to
insertion of the trajectory rods, an assertion l can find no support for anywhere in
the record. Washington’s second question was actually answered by Rone. Rone
testified that the shooter was seated in the rear passenger side seat based on the
trajectory of the bullets.
Conclusion

For the foregoing reasons, Washington’s Amended Motion and
Supplemental Claims for postconviction relief should all be DENIED. Rule 61
Counsel’s Motion to Withdraw should be GRANTED.

IT IS SO RECOMMENDED.

/s/ Braa’ley V. Manning
BRADLEY V. MANNING,

Commissioner

oc: Prothonotary
cc: Defendant via first class mail.
All counsel via email.

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