IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

Plaintiff,

Cr. ID. No. 1307021270A

KYRAN R. JONES,

Defendant.

Date Submitted: March 9, 2017
Date decided: June 5, 2017
(Corrected: June 6, 2017)

COMMISSIONER’S REPORT AND RECOMMENDATION ON
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
Brian J. Robertson, Esquire, Deputy Attorney General, Delaware Department of
Justice, 820 N. French St. 7th Floor, Criminal Division, Wilmington, Delaware,

19801, Attorney for the State.

Patrick J. Collins, Esquire, Collins & Associates, 716 North Tatnall Street, Suite
300, Wilmington, Delaware 19801, Attorney for the Defendant.

MANNING, Commissioner

This 5th day of June 2017, upon consideration of defendant Kyran Jones’s

amended motion for postconviction relief, I find the following:
Procedural History

On October 14, 2013, Jones was indicted on the following charges:
Attempted Murder Fist Degree, Attempted Robbery First Degree, Possession of a
Firearrn During the Commission of a Felony (two counts) and Possession of a
Deadly Weapon by a Person Prohibited. Prior to trial, the possession of a deadly
weapon by a person prohibited charge was severed and then later dropped as part
of a guilty plea in an unrelated case.l

Following a four day jury trial, Jones was found guilty of the lesser-included
offenses of Assault in the First Degree, Attempted Robbery in the First Degree and
two counts of Possession of a Firearm During the Commission of a felony. Prior
to sentencing, Rule 61 Counsel entered his appearance on behalf of Jones. On
February 20, 2015, Jones was sentenced to ll years of unsuspended Level Five
time, followed by decreasing levels of probation.

J ones appealed his conviction to the Delaware Supreme Court which
affirmed his convictions on November 10, 2015.2 On appeal, Jones argued two

issues. First, Jones argued that a statement made by the prosecutor during closing

 

' Cr. 1.D.#1308004537.

2 Jones v. State, 127 A.3d 1170 (Table) (Del. 2015).

arguments was not supported by the record and amounted to prosecutorial
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State,3 the Supreme Court held that it was “not a close case” and that the
prosecutor’s remarks, although improper, did not prejudice Jones or result in an
unfair trial.

Second, Jones argued on appeal that testimony about prior drug sales
between Mayne and Jones was improper and should have been excluded as
impermissible “bad act” evidence. The Supreme Court held that because this issue
was not raised at trial it had not been preserved for appeal. Nevertheless, the
Supreme Court analyzed the issue and held that even if Jones had objected, the
evidence was properly admissible to show identity.

On February 23, 2016, Jones filed a pro se motion for postconviction relief.
Pursuant to Superior Court Criminal Rule 62, Jones’s motion was referred to the
undersigned Commissioner. Jones was subsequently appointed counsel who filed
an amended and superseding motion for postconviction relief (the “Motion”) on
August 31, 2016. Trial Counsel filed an Affidavit on December 6, 2016. The
State filed its Response on January 10, 2017. J ones filed his Reply on February 9,

2017.

 

3 437 A.2d 559 (Del. 1981).

Based upon my review of Jones’s Motion, the trial transcripts and the
Delaware Supreme Court decision affirming his conviction, I do not see the need
for an evidentiary hearing In my opinion, the arguments made by Jones in his
Motion can be determined with the factual record created at trial. Jones’s claims
for postconviction relief are:

Ground one: Trial Counsel provided ineffective assistance by failing to call
Charlie Thompson as a witness; his testimony would likely have established

reasonable doubt that Mr. J ones was the shooter.

Ground two: The prosecutorial misconduct analysis changes when trial
counsel’s failure to call Charlie Thompson is considered

Facts Adduced at Trial

 

On July 25, 2013, Raymond Mayne and his friend Ray Vandam, known as
“Peewee,” drove to a church parking lot in the Riverside neighborhood of
Wilmington to buy heroin from Jones.4 Peewee was the driver. Mayne had prior
dealings with Jones, who he knew as “Lo,” all related to the drug trade. At trial, the
State introduced evidence that J ones maintained a Facebook page under the name
“Lo Lamotte” with the same date of birth as his.

Shortly prior to the shooting, Jones and Mayne had been communicating by
mobile phone to arrange the transaction. The pair made contact with J ones while in

the car in the parking lot. Mayne examined the product as he sat in the passenger

 

4 The facts of this case, which are not materially disputed by the parties for purposes of the
pending Motion, were drawn from the Delaware Supreme Court’s decision affirming Jones’
conviction and the trial transcripts.

seat of Peewee’s car. Dissatisfied with the quality of heroin Jones showed him,
Mayne asked for a different variety. Jones assured him that he had the type of
heroin that Mayne wanted, but would have to go around the corner to get it. The
would-be purchasers waited in the car. The time was approximately 8:26 a.m.
When Jones retumed, he pointed a handgun at Mayne and demanded his money.
Mayne grabbed the gun, and a struggle ensued. Jones fired several shots. Peewee
accelerated at that point, and the two made their escape. As they drove away,
Mayne realized he had been shot. They made it to the hospital, where Mayne was
treated and eventually recovered. At the hospital, Mayne identified Jones as the
shooter in a photo array, stating: “I’m not, now 1 can’t be positive, but you know, if
anybody looks like him, it’s [Jones’s picture]. But that looks like it would be a
very, very old picture.”

Wilmington police subsequently searched the area where the shooting
occurred, locating three spent shell casings on the ground. The car Mayne and
Peewee were in was found to have three bullet holes in it, two in the windshield
and one in the hood.

On April 18, 2014, six months prior to trial, the State disclosed to the
defense that a .380 caliber handgun, that ballistically matched the spent shell
casings found at the scene of the shooting, had been located. Coincidently, the

handgun was found on July 25, 2013, as part of a probation search of Charlie

Thompson’s residence at 2409 North Tatnall Street in Wilmington. Probation had
searched Thompson’s house around 7:00 p.m that evening During an interview
with police on April 10, 2014, Thompson denied that the gun could have been used
in a shooting on July 15, 2013, because the gun was with him at his residence all
day until located by police. Thompson also denied lending the gun to anyone. The
police report reflects that Thompson told police that “he did not know anything
about the shooting and even if he did have information about the shooting he
wouldn’t tell anyway.”

At trial, Mayne was never asked by the State to make an in-court
identification of Jones. The State, via Det. Nowell, introduced the prior out of
court statement of Mayne pursuant to 11 Del. C. § 3507. Additionally, Det.
Nowell testified that Mayne identified Jones in the photo array as the shooter, but
that the photo used in the array was three years old, dating to when Jones was 14
years old. On cross-examination, it was elicited that Peewee told Det. Nowell that
a different person in the photo array looked similar to the shooter.

When Jones was arrested, he was in possession of a mobile phone. Using
that phone’s number, the State introduced evidence of phone calls between that
phone and Mayne’s phone immediately prior to the shooting Additionally, the

State introduced evidence, established using cell tower sites, that Jones’s phone

was present in the same general area was and used to make calls shortly prior to
the shooting
Legal Standard

To prevail on an ineffective assistance of counsel claim, a defendant must
meet the two-pronged Strickland test by showing (l) counsel performed at a level
“below an objective standard of reasonableness” and (2) the deficient performance
prejudiced the defense.5 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 reasonable
probability that, but for defense counsel’s unprofessional errors, the outcome of the
proceedings would have been different.6

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 prong7 Mere allegations of ineffectiveness will
not suffice; instead, a defendant must make and substantiate concrete allegations of

actual prejudice.8 An error by defense counsel, even if professionally unreasonable,

 

5 strickland v. Washingm, 466 U.s. 668, 687-88, 694 (1984).
6 Id.
7 1a ar 697.

8 Younger v. S¢aze, 580 A.2d 552, 556 (Del. 1990).

does not warrant setting aside the judgment of conviction if the error had no effect
on the judgment.9

In considering post-trial attacks on counsel, Strickland cautions that trial
counsel’s performance should be reviewed from his or her perspective at the time
the decisions were being made.10 A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting efforts of hindsight.
Second guessing or “Monday morning quarterbacking” should be avoided. ll

The procedural requirements of Superior Court Criminal Rule 61 must be
addressed before considering the merits of any argument.12 Jones’s Motion was
timely filed, is not repetitive and neither of his arguments were previously
adjudicated in any forum. Therefore, Jones’s Motion is not procedurally barred so
I will address each claim on its merits.

Ground One: Failure to call Charlie Thomnson

At trial, neither side called Thompson as a witness. However, Trial Counsel

did attempt to use this evidence to raise a reasonable doubt as to who the shooter

was. Trial Counsel called the Chief Investigating Officer as a witness and on

 

9 szrickzand, 466 U.s.ar 691.

'O Id.
" Id.

‘2 See Younger, 580 A.zd at 554.

direct examination elicited from him that Charlie Thompson was, like Jones, a
black male. Obviously, this fact would have then allowed Trial Counsel to make
the argument that Thompson was the real shooter and Jones was misidentified by
Mayne. Considering that the actual gun used was found in Thompson’s possession
later that same day, it would have been a strong argument that obviated the need to
call Thompson as a witness, avoiding all the attendant pitfalls that might have
entailed.

However, the State was apparently ready for this tactic. On cross
examination, the State admitted into evidence a photograph of Thompson as of the
day of the shooting establishing that he was an older dark-skinned black male with
a full bead. Trial Counsel notes in his Affidavit that Jones, who was only 17, did
not have a beard when he was arrested several weeks later. Trial Counsel also
states in his Affidavit that he considered calling Thompson as a witness, but
rejected the idea for a number of reasons.

In his Reply, J ones argues that “there was no downside, and plenty of upside
to putting Thompson on the stand as a defense witness.” Jones outlines three
possible scenarios that might have played-out. The only one that would have
changed anything, the first, is if “Thompson admits that he shot Mayne.”
Although this would certainly have helped Jones, it is just wishful thinking There

is no evidence or reason to believe that Thompson would have had such an attack

of conscience that he decided to confess to attempted murder and exculpate Jones.
The State had already prosecuted Thompson for being in possession of the firearm
for which he was serving a jail sentence at the time of the trial. Thompson would
have had no reason to think the State would not have also prosecuted him for the
shooting in this case, In fact, it is just as possible that Thompson might have
changed his story to inculpate J ones by testifying that J ones dumped the gun at his
house later that day, telling him that it was “hot”_or something similar.'3 Either
way, it is all speculation.

lt is my opinion that Trial Counsel made a reasonable attempt to use
Thompson as best he could to create reasonable doubt. Considering that
Thompson had previously denied any knowledge of the shooting no reasonable
defense strategy would have been served by allowing the jury to hear him-in all
likelihood_say that again in their presence. Trial Counsel did not have to prove
Thompson was the shooter; only raise it as a reasonable doubt_which he tried to
do. Clearly, Trial Counsel had to walk a fine line in how best to use Thompson
without inadvertently making the case against Jones stronger. The fact that the
State was ultimately able to undermine Trial Counsel’s attack was just good
lawyering As I see it, nothing Trial Counsel did, or failed to do, fell below an

objective standard of reasonableness

 

13 In fact, at trial, Det. Nowell testified that after a shooting typically “guns are immediately
handed off or passed on or discarded, thrown away.”

Ground TWo: Prosecutorial Misconduct Analvsis

In his Motion, Jones somewhat chafes against the Delaware Supreme
Court’s ruling upholding Jones’s conviction. Jones recognizes, however, that he
cannot re-litigate the issues decided there in this forum, but asks the Court to
consider them for context in light of his arguments

J ones argues that “[i]f Charlie Thompson had testified, this is a closer case.”
Jones asserts that the prosecutorial misconduct analysis under Huges would then
have gone in Jones’s favor_resulting in a new trial. Jones argues that the
Supreme Court’s ability to review the record was limited by Trial Counsel’s
deficient performance. Jones also notes that Thompson is not even mentioned in
the Supreme Court’s Order_which is true.

l must credit Jones for his novel and crafty argument; however, l am not
persuaded Jones’s argument, in essence, is based on the flawed notion that had
Trial Counsel called Thompson to the witness stand he would have unquestionably
offered some type of evidence exculpatory to Jones_making the case far less
“close.” However, there is simply nothing in the record to support that assertion.
Because of this lack of evidence, I cannot concur with Jones’s argument that “it is
reasonably likely that the Supreme Court would have come to a different

conclusion in its Hughes analysis.” As discussed previously, Thompson was a bit

10

of a wildcard for both sides Nevertheless, Trial Counsel attempted to make the
best possible use of Thompson as he could under the circumstances
Conclusion
Trial Counsel’s actions were professionally reasonable and did not constitute
ineffective assistance of counsel nor prejudice Jones’s trial. Accordingly, Jones’s
Motion should be DENIED.

IT IS SO RECOMMENDED.

 

Bradley V. l\%nninf 6

5

Commissioner

oc: Prothonotary
cc: Counselvia email.

ll

