IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE

v. I.D. N0. 1302002915

JEFFREY KENT

VVV\/V\./V

Defendant.

Submitted: August 25, 2017
Decided: September 5, 2017

COMMISSIONER’S REPORT AND RECOMMENDATION

THAT DEFENDANT’S MOTION FOR POSTCONVICTI()N RELIEF
SHOULD BE DENIED

Abby Adams, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Patrick Collins, Esquire and Matthew Buckworth, Esquire, Collins & Associates,
Wilmington, DE, counsel for Jeffery Kent.

MAYER, Commissioner

This 5th day of September, 2017, upon consideration of Defendant’s Motion
for Postconviction Relief and the record in this matter, the following is my Report
and Recommendation.

FACTUAL AND PROCEDURAL BACKGROUND

On September 18, 2014, after a jury trial, Defendant, Jeffery Kent, was found
guilty of Murder in the First Degree and Possession of a Firearm During the
Commission of a Felony. The charges stem from an incident that occurred on June
30, 201 l, when Dewey Lee (“Lee”) stopped at an intersection and a man on a bicycle
approached the car and shot Lee.l Lee’s vehicle then accelerated down the road
and struck a utility pole. The man on the bicycle fled. Three eyewitnesses
identified Defendant as the man on the bicycle. All three testified at trial for the
State and identified Defendant as the shooter. Defendant also presented several
witnesses in his defense in an attempt to contradict or impeach the State’s witnesses’
testimony.

After Defendant’s conviction, Trial Counsel filed a motion for judgment of
acquittal and a motion for new trial that were subsequently denied.2 Defendant also

filed an appeal and a mandate was filed by the Supreme Court, en banc, affirming

 

' The facts recited herein were taken from the Delaware Supreme Court’s Order
ofMarch ll, 2016 (D.I. # 72).

2 See D.I. #S 50-57.

the Superior Court judgment of conviction.3 Defendant then filed a pro se Motion
for Postconviction Relief on April 11, 2016. Counsel was appointed to represent
Defendant through the postconviction process (“Counsel”). The record was
enlarged and Counsel has submitted an Amended Motion for Postconviction Relief
(the “Motion”), Trial Counsel4 submitted an Affidavit responding to the allegations,
the State of Delaware responded to the Motion, and Defendant filed a reply.5

The Motion originally presented three claims for postconviction relief.
However, since the filing of the Motion, Defendant has had an opportunity, with the
assistance of Counsel, to review the record further and has withdrawn Claims l and
II.6 Defendant continues to press Claim III which is an argument that Trial Counsel
was ineffective for failing to call Siron Chambers (“Chambers”) as a witness at trial.

According to the Motion, Chambers was interviewed by police on July 3, 201 l
with respect to this case. Chambers indicated that at the time of the incident, he

was at his residence, heard noises, saw a truck crash, but did not see Defendant

 

3 D.I. # 72.

4 Defendant was aided at trial by two attorneys from the Office of Defense
Services that filed a “joint” Affidavit and will collectively be referred to herein as
“Trial Counsel”.

5 See D.I. #s 87-92.

6 See D.I. # 92. As these claims are withdrawn they will be deemed waived and
l will not address them further herein.

(someone he was familiar with) in the area.7 Chambers also admitted that he, and
a friend, attempted to steal the victim’s wallet but others arriving on the scene
stopped him.8 Defendant asserts that if Chambers had been called at trial, his
admission that he attempted to rob the victim, could have cast reasonable doubt on
Defendant’s guilt especially in light of the fact that Chambers did not see Defendant
at the scene. Defendant concedes that Chambers would likely have asserted his
Fifth Amendment privilege against self-incrimination and may have refused to
testify. Despite this, Defendant believes Trial Counsel’s failure to call Chambers
as a witness fell below an objective standard of reasonableness
CONCLUSIONS OF LAW

Prior to ruling on a motion for post-conviction relief, the Court must first
determine whether there are any procedural bars before considering the merits of the
claims.9 Defendant’s Motion was timely filed,lo this is Defendant’s first motion for
postconviction relief and since Defendant raises a claim of ineffective assistance of

counsel that could not have been litigated earlier, the other procedural bars do not

 

7 Appendix at A690-92, A7l2-713, A700-01.
3 Appendix at A703, A712, A7l7.
9 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

'0 Super. Ct. Crim. R. 6l(i)(l).

apply to bar the claim.ll

In order to prevail on an ineffective assistance of counsel claim, a defendant
must show that his counsel’s representation fell below an objective standard of
reasonableness and that but for the errors, there is a reasonable probability that the
outcome of the proceedings would have been different. '2 Defendant must
overcome a strong presumption that counsel’s conduct was reasonably professional
under the circumstances13 Defendant must also show that any alleged errors were
so serious that his counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment.14 “A defense attorney may not be faulted for
a reasonable miscalculation or lack of foresight or for failing to prepare for what
appear to be remote possibilities.”‘5 Mere allegations of ineffectiveness will not

suffice, rather, a defendant must make and substantiate concrete allegations of actual

 

" See Super. Ct. Crim. R. 61(i)(2), (3) and (4).

'2 Stricklana’ v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hl'tchens v. State,
757 A.2d 1278 (Del. 2000).

13 State v. Wright, 653 A.2d 288, 293-94 (Del. Super., 1994) (citations omitted).
14 State v. Finn, 2012 WL 198()566, at *4 (Del. Super., May 23, 2012).
'5 Id (holding defense counsel provided active and capable advocacy when evidence

against Defendant was overwhelming) (citing Harrington v. Rz`chter, 131 S. Ct. 770,
787-792 (2011)).

prejudice.16 Great weight and deference are given to tactical decisions by the trial
attorney and counsel cannot be deemed ineffective for failing to pursue motions that
lack merit.17 Additionally, it is the attorney’s “right to decide certain strategic and
tactical decisions, including what witnesses to call, whether and how to conduct
cross-examination, what trial motions should be made, and what evidence should be
introduced.”18 When judging a claim of ineffectiveness, the benchmark is “whether
counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.”19

Trial Counsel attests that they did not call Chambers as a witness because
counsel “believed he could be a potential suspect for the jury to consider as the
shooter.”20 The State also argues Defendant has taken certain Statements of the

witness out of context, and I agree. A review of the police interview transcript

shows that Chambers did not see the incident, but his family member identified

 

16 Younger v. State, 580 A.2d 552, 556 (Del. 1990).
17 State v. Miller, 2013 WL 871320, at *4 (Del. Super., Feb. 26, 2013).

18 State v. Cooke, 2010 WL 3734113, at * 16 (Del. Super. Aug. 19, 2010) (internal
Citathl’lS Omltt€d). S€€ alSO COOk€ V. Staf€, 977 A.2d 803, 840-841 (Del. 2009).

19 State v. Wrz'ght, 2015 WL 648818 (Del. Super. Feb. 12, 2015) (citations omitted).

20 D.I. # 90.

Defendant as the possible shooter. 21 Throughout the interview, Chambers
repeatedly states that he was “high,” that he does “so much drugs” and cannot
remember the night very well.22 He also believes it took him at least 4-5 minutes
from the time he heard the crash to get to the scene.23 He claims he didn’t see
Defendant out there, but also stated “He usually high, he usually -, he probably
blended in with the crowd all high (UI) you know or he probably ran (UI).”24 If
Chambers testified at trial consistent with his interview,25 then it is likely that the
testimony could have either (i) implicated Defendant in the shooting; (ii) provided
no help to Defendant because the witness’s recollection was unreliable; (iii)
established a time period of 4-5 minutes when Defendant could have run from the
scene; or (iv) all of the above.

A reviewing court should not second-guess the strategy of trial counsel.26

Defendant has proffered the possibility of a different outcome but has not met the

 

21 S€e €.g. App€rldiX at A682, A7()l, A708, A725, A728.
22 See e.g. Appendix at A691, A694, A713.

23 Appendix at A712.

24 Appendix at A713.

25 Of note, on August 25, 2014, a subpoena was attempted to be served by the
Sheriff upon Siron Chambers but was returned non est inventus. D.I. # 25.

26 Strickland, 466 U.S. at 691.

high burden to overcome the strong presumption that Trial Counsel’s strategy was
professionally reasonable nor has Defendant established a reasonable probability
that the outcome would have been different. “A reasonable probability is a
probability sufficient to undermine confidence in the outcoine.”27 In Harringron v.
Richier, the United States Supreme Court cautioned that ineffective-assistance
claims should be applied with “scrupulous care” to avoid a post-trial inquiry that
threatens the integrity of the adversary process.28 “Unlike a later reviewing court,
the attorney observed the relevant proceedings, knew of materials outside the record,
and interacted with the client, with opposing counsel, and with the judge.”29 In light
of the evidence presented, including three eye witnesses that identified Defendant as
the shooter, the potentially weak and unreliability of Chambers’ testimony, and the
great weight and deference given to tactical decisions by the trial attorney, it was not

objectively unreasonable for trial counsel to pursue the selected strategy.

 

27 Harrington v. Richter, 562 U.S. 86, 104 (2011), quoting Stricklana', 466 U.S. at
694.

28 la’. at 105 (internal citations omitted).

29 Ia’.

For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief
should be DENIED.
IT IS SO RECOMMENDED.

Commissioner Katharine L. Mayer

 

oc: Prothonotary
cc: Abby Adams, Deputy Attorney General, Esquire
Patrick Collins, Esquire

