IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

DAMON SMITH,
Cr. A. No. 1309013274

Defendant.

Date Decided: July 7, 2017
Arnended Order: July 12, 2017

On Defendant BeloW, Damon Srnith’s Motion for
Post Conviction Relief. DENIED.

ORDER

Defendant Darnon Srnith filed this Motion for post conviction relief
claiming that his trial counsel provided ineffective assistance for failing to
subpoena Witnesses. Defendant Was charged With Aggravated Menacing,
Possession of a Firearm during the Cornrnission of a Felony, Possession of a
Firearrn by a Person Prohibited, and Carrying a Concealed Deadly Weapon. These
charges arose from an incident on September 18, 2013 where Defendant and his
co-defendant brought a gun to confront individuals Defendant’s co-defendant

plead guilty on July 7, 2014, and Defendant plead guilty the following day.

Defendant claims that trial counsel provided ineffective assistance by telling the
Defendant on the day of trial that he had no subpoenaed any witnesses.

The Court must address Defendant’s motion in regard to Rule 61(i)
procedural requirements before assessing the merits of his motion.l Rule 61(i)(1)
bars motions for postconviction relief if the motion is filed more than one year
from final judgment Defendant’s Motion is not time barred by Rule 61(1)(1).2
Rule 61(i)(2)3 bars successive postconviction motions, which is also not applicable
as this is Defendant’s first postconviction motion. Rule 61(i)(3) bars relief if the
motion includes claims not asserted in the proceedings leading to the final
judgment4 This bar is also not applicable as Defendant claims ineffective
assistance of counsel, which could not have been raised in any direct appeal.5
Finally, Rule 61(i)(4) bars relief if the motion is based on a formally adjudicated
ground6 This bar is also not applicable to Defendant’s Motion.

Delaware adopted the two-prong test proffered in Stricklana’ v. Washington
to evaluate ineffective assistance of counsel claims.7 To succeed on an ineffective

assistance of counsel claim, a petitioner must demonstrate that “counsel’s

 

‘ super. Ct. Crim. R. 61(i)(i).

2 Footnote omitted.

3 super. Ct. Crim. R. 61(i)(2).

4 super. Ct. Crim. R. 61(i)(3).

5 See State v. Berry, 2016 WL 5624893, at *4 (Del. Super. Ct. June 29, 2016); see also Watson v.
Sm¢e, 2013 wL 5745708, at *2 (Dei. oct. 21, 2013).

6 super. Ct. Crim. R. 61(i)(4).

7 See Strickland v. Washington, 466 U.S. 668 (1984); see also Albury v. State, 551 A.2d 53 (Del.

1988).

representation fell below an objective standard of reasonableness, and that there is
a reasonable probability that but for counsel’s unprofessional errors, the result of

8 .
” The Court’s “review of counsel’s

the proceeding would have been different.
representation is subject to a strong presumption that representation was
professionally reasonable.”9 The “benchmark for judging any claim of
ineffectiveness [is to] be 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.”10 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.”ll Here, Defendant’s trial counsel filed an
Affidavit in response to Defendant’s Motion for Postconviction Relief. Trial
counsel states that after being supplied with a list of possible witnesses to the
matter, trial counsel took the following steps. Trial counsel’s investigator
interviewed possible witness Anthony Brown. After the interview, counsel
determined that Mr. Brown’s statements were vague and he was not a key witness

to the entire incident. Thus counsel decided not to call Mr. Brown as a witness.

Trial counsel also averred that possible witness Antonia Brown was present in the

 

8 Flamer v. State, 585 A.2d 736, 753 (Del. 1990); see also Strickland v. Washington, 466 U.S.

668 (1984).

9 1a

10 State v. Wright, 2015 WL 648818, (Del. Super. Ct. Feb. 12, 2015)(citations omitted).
ll State v. Cooke, 2010 WL 3734113, at * 16 (Del. Super. Aug. 19, 2010).

courtroom before trial and trial counsel interviewed Ms. Brown prior to trial.
Defendant’s co-defendant, John Smith, entered into a plea before Defendant’s trial.
Trial counsel had Mr. Smith transported to the courthouse before trial, and notified
Mr. Smith’s counsel that he was being called to testify. However, before trial, Mr.
Smith’s counsel notified Defendant’s trial counsel that Mr. Smith was invoking his
Constitutional Right and would not to testify. Finally, as to possible witness Cache
Clifton, trial counsel’s investigator interviewed Ms. Clifton on January 6, 2014.
Ms. Clifton was more than 500 to 1000 feet away from the incident, and trial
counsel determined that she was not a key witness to the event and thus did not
subpoena her for an appearance Based on trial counsel’s affidavit, that it is trial
counsel’s tactical decision to call witnesses, and the heavy presumption trial
counsel acted reasonably, Defendant’s Motion for Postconviction Relief is hereby
DENIED.

IT IS SO ORDERED.

///%

T he Honorable €(alvin L. Scott, Jr.

