IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
)
v ) ID. No. 1212005871A
)
)
JOEQWELL COVERDALE )

Submitted: October 31, 2017
Decided: January 2, 2018

MEMORANDUM OPINION AND ORDER
Upon Defendant, Joeqwell Coverdale ’s, Motionfor Postconviction Relief,

DENIED.

Andrew J. Vella, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, for the State of Delaware.

Benjamin S. Gifford IV, Esquire, Wilmington, Delaware, for Defendant Joeqwell
Coverdale.

WALLACE, J.

I. INTRODUCTION
Before the Court is Defendant Joeqwell Coverdale’s Motion for
Postconviction Relief. Coverdale, Who Was sentenced to an aggregate mandatory
period of incarceration of twenty-one years, asks the Court to set aside one of his
judgments of conviction; that is, for one count of first degree robbery. For the
reasons stated below, Coverdale’s application is DENIED.
II. FACTUAL AND PROCEDURAL BACKGROUND
One December evening in 2012, Mohammed Kayyali (“Mohammed”), his
brother Abdullah Kayyali (“Abdullah”), and their friends, Emilio Laury and Annette
Torregrossa, Were smoking marijuana in a vehicle driven by Mohammed.l At one
point, the four drove to FenWick Apartments in Elsmere, Delaware, to purchase more
marijuana.2
Upon arrival, Mohammed parked the car, and Laury, Who Was acquainted
with the dealer from Whom they Wished to purchase more marijuana, exited the car.3
The Kayyali brothers and Torregrossa remained in the car.4 Three men then

approached their vehicle: the lirst, later identified as Coverdale, held a gun against

 

l Covera'ale v. State, 2015 WL 2329156, at *l (Del. May 12, 2015).

2 Id.
3 Id.
4 Id.

Mohammed’s head; the second opened the rear doors and robbed the passengers in
the back seat, Abdullah and Torregrossa; and the third kept watch.5 The three
robbers stole wallets, money, cell phones, and jewelry from the victims, as well as
the keys to the vehicle and the recently-purchased marijuana from Laury upon his
return to the vehicle.6 The robbers searched the trunk of the car before Coverdale
returned the keys to Mohammed and instructed him to leave.7 Mohammed then
asked for his wallet back.8 Coverdale complied, but opened the wallet first and read
the address from Mohammed’s license, saying, “I know where you live at, l seen
your address and l know exactly where that address is . . . [D]on’t tell the cops or
we’ll get you.”9

The victims then returned to Abdullah’s house, where they spotted Of`ficer
John Mitchell of the Elsmere Police Department and reported the incident.10 Officer
Mitchell interviewed the victims first at Abdullah’s house and again at the police

station.ll Officer Mitchell composed two photographic line-ups based on the

 

5 Id.
6 Id.
7 Id.
8 Id.
9 Id.
10 Id.
11 ld.

victims’ description of` the robbers.12 Coverdale was identified in the line-ups by
Mohammed, Abdullah, and Laury,13 Of`ficer Mitchell then executed a search
warrant on Coverdale’S apartment, where he discovered the victims’ four stolen cell
phones.14 Coverdale was arrested later that day.

Coverdale was indicted f`or four counts of Robbery in the First Degree, four
counts of Possession of` a Firearm During a Commission of` a Felony, one count of
Conspiracy in the Second Degree, and three counts of` Possession of a Firearm by a
Person Prohibited.15

At trial, the State entered a nolle prosequi on two counts of Possession of a
Firearm by a Person Prohibited, and the third was severed.16 The jury found

Coverdale guilty of three counts of` Robbery in the First Degree, one count of

 

12 Id.
13 Id.
14 ld.

15 lndictment, State v. Joeqwell Coverdale, ID No. 1212005871A (Del. Super. Ct. Mar. 4,
2013).

16 Def.’s Am. Mot. for Postconviction Relief, at 1-2 (hereinafter “Def`.’s Mot.”).

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Robbery in the Second Degree,17 and four counts of` Possession of` a Firearm During
a Commission of` a Felony.18

Sentencing took place in June 2014. For the first count ofRobbery in the First
Degree, Coverdale was sentenced to ten years at supervision Level V, suspended
after three years for two years and six months at Level IV, suspended after six
months for two years at Level Ill.19 For each of` the other two counts of Robbery in
the First Degree, Coverdale was sentenced to three years at supervision Level V.20
For the Robbery in the Second Degree conviction, Coverdale was sentenced to five
years at supervision Level V, Suspended immediately for two years at Level III.21
For each of` the four counts of` Possession of` a Firearm During a Commission of a

Felony, Coverdale was sentenced f`or three years at Level V.22 Finally, f`or the count

 

17 The Court had granted Coverdale’s mid-trial request for a judgment of acquittal on the
original charge of` first degree robbery in Count Vll (that naming Laury as a victim) and, therefore,
the jury was instructed on robbery second degree only f`or that count. App. to Def.’s Mot. at A122;
id. at 137.

18 Verdict Form, State v. Joeqwell Coverdale, ID No. 1212005871A (Del. Super. Ct. Feb. l4,
2014).

19 Sentencing Order, State v. Joeqwell Coverdale, ID No. 1212005871A (Del. Super. Ct. June
13, 2014).

20 ld.
21 Id.
22 Id.

of Conspiracy in the Second Degree, Coverdale was sentenced to two years at
supervision Level V, suspended immediately for one year of Level II probation.23
Coverdale appealed through trial counsel. The Delaware Supreme Court
affirmed Coverdale’s convictions.24
Coverdale then filed a pro se Motion for Postconviction Relief and an
amended motion through assigned postconviction counsel.25 Trial counsel filed an

affidavit in response to the motion.26 And the State has filed its response opposing

Coverdale’s motion.27

III. DISCUSSION

A. SUPERIOR COURT RULE 61(1)(3) IS NoT A PROCEDURAL BAR To
CovERDALE’S INEFFECTIVE ASSISTANCE 0F CoUNSEL CLAIM.

 

23 Id.
24 Coverdale, 2015 WL 2329156, at *3.
25 Def.’s Mot.

26 See Horne v. State, 887 A.2d 973, 975 (Del. 2005) (“preferable practice in a case . . .
involving a first postconviction motion containing ineffectiveness claims” is “to obtain trial
counsel’s affidavit in response to the defendant’s allegations of ineffective assistance of counsel”
because “[w]ithout either an affidavit from trial counsel or an evidentiary hearing on the
allegations, trial counsel would have neither an opportunity to be heard, nor the chance to defend
himself against such charge of incompetency” and the record upon which the courts must base
their review of the reasonableness of counsel’s representation would be “incomplete and
inadequate”).

27 State’s Resp. to Def.’s Am. Mot. for Postconviction Relief (hereinafter “State’s Resp.”).

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The State first argues that Coverdale’s single claim in his postconviction
motion is procedurally barred by Superior Court Criminal Rule 61(i)(3), which
provides that “[a]ny ground for relief that was not asserted in the proceedings leading
to the judgment of conviction, as required by the rules of this court, is thereafter
barred[.]”28 But the Delaware Supreme Court and this Court have consistently held
the 61(i)(3) bar inapplicable when a defendant “claims ineffective assistance of
counsel, which could not have been raised in any direct appeal.”29 Because
Coverdale’s motion is timely filed and raises an ineffective assistance of counsel
claim that could not have been raised during his trial or on direct appeal (where he
was represented by trial counsel), it is not procedurally barred by this Court’s Rule
61(i)(3).

B. COVERDALE FAILS TO ESTABLISH A CLAIM FOR INEFFECTIVE
ASSISTANCE OF COUNSEL.

Coverdale complains that he was provided ineffective assistance of counsel
during his trial. Coverdale contends that his trial counsel’s failure to request a
specific jury instruction prejudiced him, as the jury would have convicted him of a

lesser offense had the instruction been given.

 

28 SUPER. CT. CRIM. R. 61(i)(3).

29 Sm¢e v. smi¢h, 2017 WL 2930930, ar *1 (Dei. super. Ct. July 7, 2017).

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During jury deliberations, the jury sent a note to the Court asking: “(l) Can
there be a third option of [Robbery in the] Second Degree for Count I? (2) If not, can
we select not guilty for Count I and guilty for Count ll? (3) Can we see the police
report for [Torregrossa]?”30

The Court stated that it would provide the supplemental jury instruction on
second degree robbery for Count I only if the parties so agreed.3l Trial counsel
discussed the option with Coverdale, and reported to the Court that “[Coverdale]
d[id] not wish for [counsel] to make a formal application for a lesser-included
offense” on Count I.32 Instead Coverdale - after hearing the jury’s note - wished to
go all-or-nothing as to Count I. Coverdale now argues that “[t]rial counsel’s error
in failing to request a jury instruction on a lesser-included offense . . . had a
devastating effect on [Coverdale].”33

An inmate who claims ineffective assistance of counsel must demonstrate

that: (a) his defense counsel’s representation fell below an objective standard of

reasonableness, and (b) there is a reasonable probability that but for counsel’s errors,

 

30 Def.’s Mot. at 20 (citing App. to Def.’s Mot. at Al4l). Torregrossa was the victim named
in Count I of the Indictment.

31 App. to Def.’s Mot. at Al42.
32 Id. at Al42.

33 Def.’s Mot. at 21.

the result of the proceeding would have been different.34 A reasonable probability

exists when there “is a probability sufficient to undermine confidence in the

outcome.”35

There is a strong presumption that counsel’s conduct fell within a wide range
of reasonable professional assistance.36 And there is a strong presumption that
defense counsel’s conduct constituted sound trial strategy.37 When evaluating an
attorney’s performance, a reviewing court must “eliminate the distorting effects of
hindsight,” “reconstruct the circumstances of counsel’s challenged conduct,” and
“evaluate the conduct from counsel’s perspective at the time.”38 “lt is not this
Court’s function to second-guess reasonable trial tactics.”39 For “[e]ven the best
,,40

criminal defense attorneys would not defend a particular client the same way.

And there is, quite simply, a wide range of legitimate decision making that might be

 

34 Strickland v. Washington, 466 U.S. 668, 694 (1984); see also Alston v. State, 2015 WL
5297709, at *3 (Del. Sept. 4, 2015).

35 Strickland, 466 U.S. at 694.

36 See id. ar 689; Gam's v. srare, 697 A.2d 1174, 1184 (Dei. 1997).

37 See Strickland, 466 U.S. at 689; Flamer v. State, 585 A.2d 736, 753-54 (Del. 1990).
38 Strl`ckland, 466 U.S. at 689.

39 State v. Dmmmond, 2002 WL 524283, ar *1 (Del. super. Ct. Apr. 1, 2002).

40 Strickland, 466 U.S. at 690.

made by a competent attorney.41 Lastly, an inmate may not rely on conclusory
statements that he suffered ineffective assistance; he must instead plead all
allegations of prejudice with particularity.42

His Counsel’s Performance Was Not Deficient When He Followed

Coverdale’s Demand to Reject a Supplementary Mid-deliberation

Lesser-included Offense Instruction on Count I.

When addressing the issue of lesser-included offense instructions, the
Delaware Supreme Court has stated unequivocally that Delaware is a party
autonomy jurisdiction.43 ln turn, a trial court does not interfere in the tactics of the
parties but must withhold charging on a particular lesser-included offense unless
requested by a party.44 This allows the defendant to exercise or, as here, to waive

the “full benefit of the reasonable doubt standard”45 that a lesser-included offense

instruction may promote. Importantly, under the party autonomy approach, the

 

41 Id. at 688-89; Moore v. Deputy Commissioner(s) of SCI-Huntingdon, 946 F.2d 236, 246
(3d Cir. 1991) (even if reviewing court would advise another course); State v. Carter, 782 N.W.2d
695, 704 (Wis. 2010) (“Indeed, counsel’s performance need not be perfect, nor even very good, to
be constitutionally adequate.”).

42 See Monroe v. State, 2015 WL 1407856, at *5 (Del. Mar. 25, 2015) (citing Dawson v.
Sm¢e, 673 A.2d 1186, 1196(De1. 1996)).

43 State v. Brower, 971 A.2d 102, 110 (Del. 2009) (“We ratify and reaffirm our adherence to
the party autonomy rule.”).

44 Chao v. State, 604 A.2d 1351, 1358 n.4 (Del. 1992) (citing Walker v. Um'ted States, 418
F.2d 1116, 1119 (D.C. Cir. 1969) and Hagans v. State, 559 A.2d 792, 804 (Md. 1989)).

45 Beck v. Alabama, 447 U.S. 625, 634 (1980).

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parties determine whether to ask for and, if so, what offenses it is in their best interest
for the jury to consider.

In State v. Cox, the Court declared that “the trial court ordinarily should not
give a jury instruction on an uncharged lesser-included offense where neither side
requests or affirmatively agrees to such instruction.”46 The burden falls on defense
counsel to request the instruction; otherwise, the trial court cannot “discount the
possibility that such a position [to not seek the instruction] is a tactical decision by
defense counsel.”47

Our Supreme Court has consistently adhered to its holdings that in Delaware
the defense should have the ability to, when there is a rational basis in the evidence,
request or forego the specific lesser offenses it wishes to have submitted “for it is
they who determine trial tactics and presumably act in accordance with a formulated
strategy.”48 The decision to waive included offense instructions is one that involves
an in-depth discussion of the trial evidence and defense tactics between counsel and

client, and the trial court accepts defense counsel’s professional statement that

waives such instructions49

 

46 851 A.2d 1269, 1273 (Del. 2003) (quoting Hagans, 559 A.2d at 804).
47 Perkins v. State, 920 A.2d 391, 399 (Del. 2007).

48 Chao, 604 A.2d at 1358; Cox, 851 A.2d at 1274; Johnson v. State, 2007 WL 1238887, at
*3 (Del. Apr. 25, 2007).

49 See State v. Wallace, 475 N.W.2d 197, 200-01 (Iowa 1991).
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This Court has said that the decision “whether to request the instruction [of a
lesser included offense] [i]s a matter of trial strategy within the province of defense
counsel rather than the defendant.”50 Taking an “all-or-nothing” approach on jury
instructions constitutes trial strategy within the province of counsel. Strategic
decisions made by trial counsel will be upheld unless the defendant can show them
to be objectively unreasonable51 The Court, at Coverdale’s trial, acknowledged the
“benefit to an all-or-nothing option for the defendant,” supporting the objective
reasonableness of trial counsel’s choice here.52

And Coverdale’s counsel received Coverdale’s express endorsement of such
an approach.53 “Counsel’s function is to assist the defendant, and hence counsel
owes the client a duty of loyalty . . . . From counsel’s function as assistant to the
defendant derive the overarching duty to advocate the defendant’s cause and the
»54

more particular duties to consult with the defendant on important decisions[.]

Here, the record reflects that Coverdale and his counsel had “time to confer,” and

 

50 Moore v. State, 2003 WL 1987899, at *2 (Del. Apr. 28, 2003).
51 Pennewell v. State, 2005 WL 578444, at *1 (Del. Jan. 26, 2005).
52 App. to Def.’s Mot. at Al42.

53 Id. at Al42.

54 Strickland, 466 U.S. at 688.

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that Coverdale did not “wish for [his counsel] to make a formal application for a
lesser-included offense.”55 Coverdale did not want the jury to have the lesser offense
to which it could retreat on Count I. Rather, believing the State had not proven his
criminal culpability for first degree robbery, and that the jury was signaling that it
had found that to be true, Coverdale wished to seek full acquittal on Count l.

His counsel’s choice - given the jury’s suggestion it was considering complete
acquittal on Count l - was both reasonable strategy and consistent with Coverdale’s
express instruction. In his capacity as assistant to Coverdale, trial counsel
appropriately heeded Coverdale’s wishes by rejecting the Court’s offer of a
supplementary jury instruction on the lesser-included offense.

Coverdale posits a view that would seriously compromise the long-accepted
standard for examining a trial attorney’s trial behavior. Under Coverdale’s
construct, an attorney’s reasoned and informed strategic act that his or her client
expressly instructed him to take would be found to an unprofessional error violative
of the Sixth Amendment merely because it didn’t work. The Court declines

Coverdale’s invitation to ignore the Strickland standard.56 Coverdale can hardly

 

55 App. to Def.’s Mot. at Al42.

56 Stricklcmd, 466 U.S. at 689 (“Judicial scrutiny of counsel’s performance must be highly
deferential lt is all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after
it has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable.”); Moore, 946 F.2d at 246-47 (“The most we can say is that from our post-trial
position, deprived of course of the feel of the trial courtroom, we think we might have

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complain now that his attorney needed to override his express instruction to eschew
the lesser or be deemed to have provided constitutionally deficient representation
simply because the informed and agreed-to tactic chosen failed.

Because Coverdale fails to show that trial counsel’s decision to decline the
supplementary mid-deliberation lesser-included offense instruction was objectively
unreasonable, and because trial counsel acted in accordance with Coverdale’s wishes
when rejecting the instruction, this Court must uphold counsel’s strategic decision.57
There is always a strong presumption that counsel’s representation was reasonable,58
and “[i]t is not this Court’s function to second-guess reasonable trial tactics.”59 So,

on this basis alone, Coverdale’s claim of ineffective assistance fails.60

 

recommended something else at the trial if we had been there. Under Strickland that is not a
sufficient basis to find the counsel to have been ineffective We can find a Sixth Amendment
violation only if we give mere lip service to Strickland.”).

57 Hoskins v. State, 102 A.3d 724, 730 (Del. 2014) (“lf an attorney makes a strategic choice
‘after thorough investigation of law and facts relevant to plausible options,’ that decision is
‘virtually unchallengeable’ . . .”).

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

59 State v. Drummona’, 2002 WL 524283, at *1 (Del. Super. Ct. Apr. 1, 2002); Burns v. State,
76 A.3d 780, 788 (Del. 2013) (“It should be noted that even evidence of ‘[i]solated poor strategy,
inexperience, or bad tactics do[es] not necessarily amount to ineffective assistance of counsel.”’).

80 Strickland, 466 U.S. at 687 (to succeed on his claim of ineffective assistance of counsel,
an inmate must satisfy both prongs of the Strickland test); State v. McGlotten, 2011 WL 987534,
at *4 (Del. Super. Ct. Mar. 21, 2011) (“If a defendant cannot establish both [Strickland] prongs,
then the ineffective assistance of counsel claim fails.”).

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IV. CONCLUSION
Coverdale has not met his burden of showing objective unreasonableness of
his trial counsel’s conduct. Coverdale’s Motion for Postconviction Relief is hereby
DENIED.

IT IS SO ORDERED.

 

Paul R. Wallace, Judge
Original to Prothonotary

cc: Joeqwell Coverdale, pro se
Investigative Services Office

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