IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

V. I.D. No. 1505023582A
MARSHALL BROWN,

Defendant.

Submitted: September 11, 2019
Decided: October 31, 2019

Upon Defendant’s Amended Motion for Postconviction Relief,
DENIED.

ORDER

Zachary Rosen, Esquire, Deputy Attorney General, Department of Justice, 820
North French Street, Wilmington, DE 19801, Attorney for the State.

Christopher S. Koyste, Esquire, Law Office of Christopher S. Koyste LLC, 709

Brandywine Blvd., Wilmington, DE 19809, Attorney for Defendant Marshall
Brown.

WHARTON, J.
This 31st day of October, 2019, upon consideration of Defendant Marshall
Brown’s (“Brown”) timely Amended Motion for Postconviction Relief (“AMPCR),'
the State’s Response,” Brown’s Reply,’ and the record in this matter, it appears to
the Court that:

1. Brown was indicted by the Grand Jury on the charges of Home
Invasion, two counts of Assault First Degree, Reckless Endangering First Degree,
three counts of Robbery First Degree, eight counts of Possession of a Firearm During
the Commission of a Felony, eight counts of Wearing a Disguise During the
Commission of a Felony, Conspiracy Second degree, endangering the Welfare of a
Child, and Possession of a Firearm by a Person Prohibited.* Brown’s first trial ended
in a mistrial when the jury was unable to reach a unanimous verdict.° At his second
trial, Brown was convicted of all charges except the Possession of a Firearm by a
Person Prohibited charge, which had been severed for trial and as to which the State
entered a nolle prosequi after the verdict.® Prior to sentencing, the State moved to
have Brown declared a habitual offender and sentenced as one on all felony charges

for which he was convicted.’ After declaring Brown a habitual offender, the Court

 

‘DI. 95.
2D. 93.
3D.I. 94,
*D.T. 3.

‘DI. 34.
6 D.I. 60.
7D. 63.
sentenced him to life imprisonment plus 388 years. Brown appealed to the
Delaware Supreme Court. On appeal, he raised a single issue: whether the
observation of Brown by two witnesses at his first trial was the equivalent of an
impermissibly suggestive pretrial identification procedure.’ His appeal was
unsuccessful and his convictions were affirmed.'° Brown filed timely pro se motions
for postconviction relief and appointment of counsel.'' Counsel was appointed, and
has submitted an Amended Motion for Postconviction Relief.'”

2. In his AMPCR, Brown presses a single claim of ineffective assistance
of counsel.'? He alleges that his appellate attorney was constitutionally ineffective
for failing to appeal the trial court’s denial of his motion for judgment of acquittal
(“MJA”).!4

3. Before addressing the merits of a defendant’s motion for postconviction
relief, the Court must first apply the procedural bars of Superior Court Criminal Rule
61(i).° Ifa procedural bar exists, then the Court will not consider the merits of the

postconviction claim.!®

 

®D.I. 66.

» Brown v. State, 2018 WL 1313036 (Del. 2018).
Lah

"1 D.I. 80, 83.

2 DLT. 95.

31d.

4 Id.

's Younger v. State, 580 A.2d 552, 554 (Del. 1990).

ia.
3
4. Under Delaware Superior Court Rules of Criminal Procedure, a motion
for postconviction relief can be barred for time limitations, repetitive motions,
procedural defaults, and former adjudications. A motion exceeds time limitations if
it is filed more than one year after the conviction becomes final or if it asserts a
newly recognized, retroactively applied right more than one year after it was first
recognized.'? A second or subsequent motion is repetitive and therefore barred."
The Court considers a repetitive motion only if the movant was convicted at trial and
the motion pleads with particularity either: (1) actual innocence;!? or (2) the
application of a newly recognized, retroactively applied rule of constitutional law
rendering the conviction invalid.2? Grounds for relief “not asserted in the
proceedings leading to the judgment of conviction” are barred as procedurally
defaulted unless the movant can show “cause for relief” and “prejudice from [the]

21 Grounds for relief formerly adjudicated in the case, including

violation.
“proceedings leading to the judgment of conviction, in an appeal, in a post-

conviction proceeding, or in a federal habeas corpus hearing” are barred.”

 

!" Super. Ct. Crim. R. 61(4)(1).

'8 Super. Ct. Crim. R. 61(4)(2).

'9 Super. Ct. Crim. R. 61(d)(2)().
20 Super. Ct. Crim. R. 61(d)(2)(ii).
4 Super. Ct. Crim. R. 61(4)(3).

2 Super. Ct. Crim. R. 61(i)(4).
5. This AMPCR is a timely first motion for postconviction relief, alleging
ineffective assistance of counsel. Accordingly, the Court will consider the motion
on its merits.

6. To succeed on an ineffective assistance of counsel claim, a claimant must
demonstrate: (1) that counsel’s performance was deficient; and (2) that the
deficiencies prejudiced the claimant by depriving him or her of a fair trial with
reliable results.2> To prove counsel’s deficiency, a defendant must show that
counsel’s representation fell below an objective standard of reasonableness.”
Moreover, a defendant must make concrete allegations of actual prejudice and
substantiate them or risk summary dismissal.?> “[A] court must indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable

26 A successful Sixth Amendment claim of ineffective

professional assistance.
assistance of counsel requires a showing “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been

different.””’ An inmate must satisfy the proof requirements of both prongs to

succeed on an ineffective assistance of counsel claim. Failure to do so on either

 

2 Strickland v. Washington, 466 U.S. 668, 688 (1984).
4 Td. at 667-68.

23 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).

2 Strickland, 446 U.S. at 689.

7 Id. at 694.
prong will doom the claim and the Court need not address the other.*® In the
appellate context, “[t]he [d]efendant must first show that his counsel was objectively
unreasonable in failing to find arguable issues on appeal — that is, that counsel
unreasonably failed to discover nonfrivilous issues and to file a merits brief raising
them.””? Appellate counsel “need not (and should not) raise every nonfrivilous
claim, but rather may select from among them in order to maximize the likelihood
of success on appeal.”°° Nonetheless, it is “still possible to bring a Strickland claim
based on counsel’s failure to raise a particular claim, but it is difficult to demonstrate
that counsel was incompetent.’*! A defendant faces a tougher burden of “showing
that a particular nonfrivilous issue was clearly stronger than issues that counsel did
present” where appellate counsel filed a merits brief, than in the case where appellate
counsel filed a no merit brief.** Further, Brown must still show prejudice, “That is,
[the defendant] must show a reasonable probability that, but for his counsel’s
unreasonable failure [to raise a clearly stronger issue], he would have prevailed on

his appeal.”?? Here, Brown cannot demonstrate either that counsel’s performance

 

2 Strickland, 466 U.S. at 697; Ploof v. State, 75 A.3d 811, 825 (Del. 2013)
(“Strickland is a two-pronged test, and there is no need to examine whether an
attorney performed deficiently if the deficiency did not prejudice the defendant.”).
2 Neal v. State, 80 A.3d 935, 946 (Del. 2013) (quoting Smith v. Robbins, 528 U.S.
259, 285 (2000)).

30 Id. (citing Smith, 528 U.S. at 288).

31 Id.

32 Id.

3 Id. at 947 (quoting Smith, 528 U.S. 285).
6
was deficient in that the issue that was not presented was “clearly stronger” than the
argument actually presented on appeal, or prejudice.
7. At the conclusion of the State’s case at trial, trial counsel** moved for

judgment of acquittal.°°

Trial counsel argued that there was insufficient evidence in
the record on the issue of identification from which a jury could convict the
defendant.*° Specifically, counsel argued that the identification made by one
witness, who testified that she would never forget the Brown’s eyes, was “inherently

incredible.’

Counsel acknowledged that there was circumstantial evidence
suggesting that Brown was present at the crime scene two weeks before the incident
as well as circumstantial evidence connecting him to items left at the crime scene,
but argued there was insufficient evidence to place him at the scene when the crimes
occurred.*® The State responded that a witness positively identified Brown as being
present at the scene two weeks before the incident and that Brown’s fingerprint was
found at the scene.*? The State also referenced the witness who said she would never
forget Brown’s eyes.*°

8. Some understanding of the evidence presented at trial is necessary to

understand the shorthand references used by the parties and the Court in addressing

 

4 Different counsel represented Brown on appeal.
Trial Tr. March 30, 2017, at 112-14.

6 {d., at 113.

31 Id.

38 Id.

39 Id.

40 Id.
the MJA. That evidence is chilling. On May 26, 2015, Karen Fahey (“Karen”) was
awakened by bells ringing on the back door of the Townsend, Delaware home she
shared with her mother, her daughter, her daughter’s boyfriend, and her two
grandchildren.*! When she turned on a light, she was alarmed to see someone
dressed all in black in her backyard.** She yelled for everyone to get up and for her
daughter to call 9-1-1.4 Grabbing her gun from her bedroom, she ran back to her
kitchen.* She heard pounding on the door, the door bursting open, and saw
somebody jump into the house.*> She took a shot and the intruders opened fire,
hitting her in the leg.*° After her gun jammed, she grabbed her granddaughter, ran
back into the bedroom and threw a blanket over her.4” Someone ran into her room,
grabbing her, pounding her head down, and telling her to stay down while yelling,
“Police, police, get down.’“* Karen could hear her daughter in the other room
yelling, “Give me my baby.” After the intruder had gone into and out of the
bedroom screaming, “Give me the money. Give me the money,” somebody yelled

that the police were coming, and all of the intruders fled.°° Karen described the

 

4 Tr., Mar. 29, 2017 at 55, 56.
#2 Id. at 57.

“3 Id.

4 Id. at 57, 58.

45 Id.

46 Id,

47 Id. at 59.

48 Id.

49 Id.

0 Jd. at 60, 61.
intruders as wearing all black clothing with “POLICE” written across their shirts and
wearing masks and gloves.>!

9. Stacie Fahey (“Stacie”) was living in the home as well. She lived there
with her mother, Karen, her grandmother, her boyfriend and their two children.” On
the night of the home invasion, she was awakened by her mother screaming,
“They’re here, they’re here, call 9-1-1.°? She called 9-1-1 from her cell phone and
threw the phone into her desk in the bedroom.™* She and her boyfriend tried to
barricade the bedroom door with the desk, but the intruders broke down the door,
dragged her boyfriend out of a closet, and took him into the kitchen.* There, they
beat him while demanding money.*® Stacie was sitting on the bed, tightly holding
onto her one-year-old son when one of the men came into the bedroom and squatted
down on his knees to her level.5’ He put a gun to her head and demanded money.*®
The man then took her son from her, grabbed him by the leg, hung him upside down,
put a gun to his head, and said he was going to kill her son if she did not give him

money.°’ Eventually, the man threw her baby on the bed and fled with the others.

 

51 Id. at 63.

2 Id. 86.

3 Id.

4 Id. 87, 88.

35 Id,

56 Id. at 75, 76.
7 Id. at 90.

38 Id.

59 Id.

“1d. 91.
Stacie testified that she got a good look at the eyes of the man who crouched in front
of her and took her baby away from her, playing the look she had of his eyes back
in her head every day.°! She testified that she looked at the man’s eyes from about
the distance between her and the microphone on the witness stand. She said the

63 The incident ended when someone

Brown’s eyes looked like that man’s eyes.
yelled that the police were coming and everyone fled the house.

10. When police arrived and began looking for evidence, they found a
backpack, which contained a roll of duct tape and a pink stun gun, on the side of the
driveway.© A forensic latent print examiner later matched a thumbprint found on
the duct tape to Brown.® DNA collected from the tightening strap of the backpack
was consistent with being from a mixture of at least three individuals, including
Brown, and excluding Karen, Stacie, and Stacie’s boyfriend.®’

11. Helen McKamey lived in the same house as her daughter, Karen, and

her granddaughter, Stacie.°® On May 14", she said three men in a car came down

the lane leading from the road to her house.®? The passenger asked if she had any

 

Id. at 91, 92

“2 Id.

3 Id,

“4 Id.

6Tr., Mar. 30, 2017 at 98, 99.
6 Id. at 45, 46.

61 Id. at 68.

“Jd, at 114.

© Id. at 116, 117.
10
hay for sale, despite there being no signs indicating hay for sale.”? At trial,
McKamey positively identified Brown as being the driver of the vehicle.” Karen
was home with her mother when this incident occurred.” She observed her mother
outside talking to some people in a blue Lincoln.” Because she thought the
encounter was strange, she got the vehicle’s license plate number.” The license
plate came back to a vehicle registered to Jennifer Brown of 2509 North Washington
Street in Wilmington.” Brown listed the same address.’° Jennifer Brown is Brown’s
mother.”

12. Having heard the evidence outlined above, and viewing that evidence
in the light most favorable to the State, the Court denied Brown’s MJA.”
Specifically, the Court cited Brown’s presence at the crime scene 12 days before the
crime and his fingerprints at the scene on an item in the backpack.”

13. Brown’s AMPCR raises a single issue of ineffective assistance of
counsel. He alleges that his appellate counsel was ineffective in failing to appeal the

trial court’s denial of his MJA.®° The only issue raised on appeal argued that

 

Id. at 117, 118.

"Td.

2Tr., Mar. 29, 2017 at 64.
3 Id.

4 Id. 64, 65.

Id. at 101.

16 Td.

" Id.

78 Td, at 114.

9 Td.

© DI.
11
courtroom identifications of Brown were preceded by unduly suggestive de facto
show up identifications at his previous trial, and should have been excluded from his

second trial.*!

In an attempt to satisfy Strickland’s performance prong, Brown
argues that failure to appeal the denial of the MJA was objectively unreasonable in
its own right, but was “particularly detrimental” because raising that issue would
have given additional credence to the issue that appellate counsel did raise.®? On the
prejudice prong Brown argues that he was prejudiced by appellate counsel’s failure
to raise the denial of the MJA because that issue was stronger than the one raised,
was inextricably intertwined with the raised issue, and would have presented a much
stronger appeal had both claims been raised.®? In response, the State recites much
of the above referenced evidence. It contends that the physical evidence
corroborates the witnesses’ identifications, and as a result, given the standard for
resolving such motions, the trial court properly denied the MJA.** Since the trial
court correctly denied the motion, the State argues that Brown fails to establish either
performance deficiency or prejudice.** Furthermore, according to the State, in

focusing exclusively on evidence placing Brown at the scene of the crime, the

AMPCR fails to address his liability as an accomplice, which did not depend on his

 

8! See, Brown v. State, 2018 WL 1313036 (Del. 2018).
2D. ** at 17, 18.

83 Id. 19.

*D.I. 93 at 11, 12.

85 Jd. at 14, 15.
12
presence at the scene.** In reply, Brown maintains that, even under an accomplice
liability theory, there was insufficient evidence that Brown intended the crimes that
were eventually committed.®’

14. In order to succeed with this AMPCR, Brown must show both that the
MAJA issue was “clearly stronger” than the one raised, and, but for the failure to raise
that issue, there was a “reasonable probability” that he would have been successful
on appeal. Thus, in considering the AMPCR, the Court must evaluate the strength
of the MJA issue relative to both the issue appellate counsel did raise, and to Brown’s
overall prospects for success on appeal.

15. | The time honored approach a trial court takes in addressing a MJA is
to consider the evidence, together with all legitimate inferences from the evidence
in the light most favorable to the State.** It is only where the State has offered
insufficient evidence to sustain a verdict of guilt that a MJA will be granted.®”
Denials of MJAs are reviewed de novo by the Delaware Supreme Court.” On de
novo review the Supreme Court replicates the approach of the Superior Court. It
determines “whether any rational trier of fact, viewing the evidence and all

reasonable inferences to be drawn therefrom in the light most favorable to the State,

 

86 Jd. at 13, 14.

7D. I. 94 at 11.

8 State v. Biter, 119 A.2d 894 (Del. Super. 1955); Vouras v. State, 452 A.2d 1165
Del. 1982).

89 Td.

%° Cushner v. State, 2019 WL 3543171 at *2 (Del. Aug. 5, 2019).
13
could find the defendant guilty beyond a reasonable doubt of all of the elements of
the crime.”?!

16. A defendant has a difficult task when advancing a MJA at trial, and
perhaps an even more difficult one on appeal. The playing field tilts substantially in
favor of the State. The question for the court is whether any rational trier of fact
could find the defendant guilty when it views, not only the evidence, but also all
reasonable inferences drawn therefrom in the light most favorable to the State.
Obviously, this standard reflects a strong preference for juries to decide cases. It is
no wonder then that MJAs rarely succeed at trial. Successful appeals when those
motions are denied are rarer still.

17. The Court acknowledged that unleveled playing field when it denied
the MJA. Brown’s thumbprint was on a roll of duct tape left behind by the intruders
when the home invasion occurred. The duct tape was in a backpack along with a
stun gun. These facts come directly from the evidence and need no inferential help
to establish. That the intruders intended to use these items in facilitating the crimes
is an obvious inference without resorting to the need to view it in the light most
favorable to the State. Further, Brown’s presence at the crime scene 12 days earlier
is established with scant resort to any preferential inference. The license plate on

the car the visitors drove that day proved that the car belonged to Brown’s mother.

The car was registered to an address in Wilmington that Brown also listed as his

 

Id.
14
address, and Karen identified Brown as one of the occupants. Karen believed the
incident odd. The inquiry about hay for sale made no sense. There was no signage
anywhere advertising hay for sale, and the visitors’ vehicle — a Lincoln — seemed
unsuitable for hauling hay. A rational trier of fact easily could infer that the purpose
of the encounter on May 14" was reconnaissance. The Court remains convinced
that a rational jury could infer from Brown’s reconnaissance of the victims’
residence together with his thumbprint on an object left at the crime scene that
Brown was present at the scene.®”

18. On appeal, Brown’s counsel unsuccessfully challenged the in-court
identifications of Brown by Karen and Brown’s eyes by Stacie. He argued that those
identifications were impermissibly suggestive due to the witnesses’ observations of
Brown during his first trial. The Court does not perceive either the MJA issue or the
one raised on appeal as being particularly strong. When balancing the two, the Court
cannot say Brown’s issue is “clearly stronger.” Both were unlikely to prevail.

19. Inhis AMPCR Brown focuses his argument on an alleged insufficiency

of evidence to place Brown at the scene of the crime when it occurred, just as he did

 

2 Brown relies on Monroe v. State, 652 A.2d 560 (Del. 1995) for the proposition that
a lone fingerprint is insufficient to create an inference of a defendant’s presence at a
crime scene so as to sustain a defendant’s conviction. The circumstances here are
materially different, making Monroe inapposite. In Monroe, the defendant’s
fingerprint was found in a place accessible to the public. Here, Brown’s thumbprint
was found on a roll of duct tape inside a backpack left in a place where Brown had
no license to be. Obviously, the probative value of the thumbprint here is far greater

than in Monroe.
15
at trial. Neither side addressed the MJA at trial in the context of accomplice liability,
nor did the Court. In response to the AMPCR, the State does present an argument
based on accomplice liability. It is unknown whether the Supreme Court would have
entertained that argument on appeal, since the State did not raise it at trial and this
Court did not address it in its ruling. Nevertheless, the Court finds that Brown’s
argument weakens when it considers his possible liability as an accomplice, given
that Brown’s presence at the scene was not required for liability under that theory.”?
It is no great stretch to conclude Brown reconnoitered the target. A rational trier of
fact also could easily determine that Brown supplied the duct tape on which his
thumbprint was found for the purpose of restraining the victims. A rational trier of
fact further reasonably could infer that Brown intended that his confederates would
commit a home invasion and related crimes, and, having supplied an instrumentality
of restraint, that he reasonably foresaw that violent crimes would be committed
against the victims. In fact, home invasion itself is a violent crime and the Court can
fathom no other purpose for committing it except to commit other violent crimes.
20. Finally, Brown argues that his appeal would have been strengthen by

including the MJA issue since it would have acted synergistically with the issue that

 

In fact, the Court instructed the jury on accomplice liability. Tr., Mar. 30, 2017 at
193-96. In response to a note, the Court instructed the jury, “Physical presence at
the scene of a crime is not a requirement of accomplice liability.” Tr., Mar. 31, 2017
at 11. While the note made it plain that some jurors were considering Brown’s guilt
as an accomplice, it is not known how many, if any, jurors settled on that theory in
finding Brown guilty.

16
was raised to highlight the weakness of the State’s case. The Court disagrees. No
doubt, the Supreme Court was fully aware of the evidence the State presented at trial.
In this Court’s view, to the extent that the MJA issue would have had any effect at
all, that effect was just as likely to have been corrosive, rather than synergistic.
Adding the MJA issue might well have served only to emphasize that a rational jury,
viewing all of the evidence without any preferential inferences, did find Brown
guilty beyond a reasonable doubt. The Court finds that Brown has not established
that the MJA issue was “clearly stronger” than the issue presented on appeal, and
accordingly, he has not established that appellate counsel’s performance was
deficient.

21. The Court has already expressed it views on the strength of the MJA
issue in discussing Strickland ’s performance prong. Because it finds the MJA issue
to be unpersuasive, the Court finds that including it on appeal would not have created
a “reasonable probability” of success, whether standing alone or in conjunction with
the issue raised by appellate counsel.

THEREFORE, the Brown’s Amended Motion for Postconviction Relief is

DENIED.

IT IS SO ORDERED. Ai

 

rpms W. Wharton, J.

17
