   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                       )
STATE OF DELAWARE                      )
                                       ) ID#1211005646 A&B
           v.                          )
                                       )
TROY M. DIXON,                         )
                                       )
                 Defendant             )


                        Submitted: July 27, 2016
                       Decided: October 11, 2016

  On Defendant’s Amended Motion for Postconviction Relief. DENIED.

        On Defendant’s Motion to Compel. DENIED AS MOOT.

      On Defendant’s Motion for Correction of Sentence. DENIED.

                               ORDER

Matthew B. Frawley, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.

Anthony A. Figliola, Jr., Esquire, Figliola & Facciolo, Wilmington,
Delaware, Attorney for Defendant as to the Amended Motion for
Postconviction Relief.

Troy M. Dixon, James T. Vaughn Correctional Center, Smyrna, Delaware,
pro se as to the Motion to Compel and Motion for Correction of Sentence.

COOCH, R.J.

      This 11th day of October 2016, upon consideration of Defendant’s
Motion for Postconviction Relief, Motion to Compel, and Motion for
Correction of Sentence:


                                   1
                 I.     FACTS AND PROCEDURAL HISTORY

    1.     On January 7, 2013, a grand jury indicted Defendant on charges of
           Assault First Degree, Possession of a Firearm during the
           Commission of a Felony (“PFDCF”), Disregarding a Police
           Officer’s Signal, Resisting Arrest, and Serious Injury Possession of
           a Firearm by a Person Prohibited (“PFBPP”). Before trial,
           Defendant moved to have the charge of Serious Injury PFBPP
           severed from the remaining charges and tried separately, which the
           trial court granted. On October 1, 2013, at the first trial, a jury
           convicted Defendant of Assault Second Degree (as the lesser
           include offense of Assault First Degree), PFDCF, and Resisting
           Arrest. Defendant’s conviction for was affirmed by the Delaware
           Supreme Court on direct appeal.1 On April 7, 2014, at a separate
           trial for the PFBPP charge, a jury found Defendant guilty of
           Simple PFBPP (as the lesser included offense of Serious Injury
           PFBPP). That conviction was also affirmed by the Delaware
           Supreme Court on direct appeal.2

    2.     On December 2, 2014, Defendant filed a timely Motion for
           Postconviction Relief, in which he made numerous claims
           stemming from both trials. This Court appointed counsel, Anthony
           A. Figliola, Jr., to represent Defendant on the motion. On
           September 25, 2015, Defendant’s appointed counsel filed an
           Amended Motion for Postconviction Relief. In the Amended
           Motion, Defendant’s appointed counsel decided to pursue only one
           claim: that Defendant’s trial counsel improperly requested that the
           Court not give the jury a limiting instruction after the State
1
   Dixon v. State, 2014 WL 4952360 (Del. Oct. 1, 2014) (rejecting Defendant’s
contentions that the trial court erred when it
             (i) allow[ed] two photographic lineups into evidence; (ii) den[ied]
             a mistrial based on a witness’ unsolicited hearsay statement; (iii)
             admitt[ed] evidence of certain events on November 4, 2012 (four
             days before [Defendant] was arrested) that occurred at the Rebel
             nightclub and the Thunderguards motorcycle club where [the
             victim] was shot and killed; and (iv) den[ied] a mistrial after jurors
             had contact with two trial spectators in and outside of the
             courthouse.”).
2
  Dixon v. State, 2015 WL 2165387 (Del. May 7, 2015) (rejecting Defendant’s contention
that the trial court violated Article I § 8 of the Delaware Constitution when it instructed
the jury that it could find Defendant guilty Simple PFBPP as a lesser included offense of
Serious Injury PFBPP, even though Simple PFBPP was not included in the indictment).
                                               2
     introduced evidence under D.R.E. 404(b). The Court granted
     Defendant’s counsel’s request and did not give a limiting
     instruction. After Defendant’s trial counsel filed an affidavit in
     response to the motion and the State filed a response to the motion,
     the Court gave Defendant the opportunity to file a supplemental
     response to Defendant’s Amended Motion for Postconviction
     Relief. Defendant filed such a supplemental response pro se on
     June 16, 2016.

3.   On June 20, Defendant also filed pro se a Motion to Compel in
     which he requested records of police interviews, a transcript of a
     witness’s statement to Defendant’s trial counsel, and a transcript of
     Defendant’s trial for PFBPP. On August 1, Defendant also filed
     pro se a Motion for Correction of Sentence pursuant to Superior
     Court Criminal Rule 35(a), alleging (implicitly) that the Court
     imposed an illegal sentence. The Court now addresses all of
     Defendant’s motions in a single order.

                            II.     ANALYSIS

4.   As a threshold matter, the parties agree that Defendant’s Motion
     for Postconviction Relief is not procedurally barred by Superior
     Court Criminal Rule 61(i). The Court thus turns to the merits of
     Defendant’s motion.         Defendant’s pro se Motion for
     Postconviction Relief raised numerous grounds for relief. In
     analyzing the merits of each of Defendant’s claims, Defendant’s
     appointed counsel stated in toto in Defendant’s Amended Motion
     for Postconviction Relief:

           Claims raised by Mr. Dixon have been examined and at first
           blush have merit. However, for example, failure to raise alibi
           defense, nothing in [Trial] Counsel’s file contains the name of
           the alibi witnesses Mr Dixon claims to have given to [Trial]
           Counsel, with the exception of Jason Baul[.] Counsel claims to
           have contacted Mr. Baul and it was determined [] that Mr.
           Baul’s testimony would not be helpful. Trial counsel claims
           not to have received the names of other alibi witnesses. Dixon
           [stated] these witnesses could and would testify that Dixon was
           at Bell’s funeral at the time of the shooting. My reading of the
           transcripts support the argument that Dixon was at the funeral
           of Mr. Bell, [and] the allegation is that Dixon left the funeral[,]
           followed the victim and thereafter committed the crime.

                                     3
Counsel acknowledges that the witnesses may have been
helpful to Dixon’s case but the allegation that had counsel
presented these witnesses he would have been found not guilty
is by no means a certainty and again the file contains no
correspondence confirming that the names of these witnesses
were ever given to trial counsel.

Additional claims raised by Defendant that have been
examined by Post Conviction Counsel and deemed to be
without merit are as follows:

1. Suggestive photo lineup, this issue was raised at trial and
   argued on direct appeal. Dixon’s allegation that the issue
   should have been raised pre trial is correct, however no
   prejudice can be shown in that it is an unsupported
   conclusion that had it been raised prior to trial that it would
   have been granted. Further the trial record shows that
   Dixon was never identified as the shooter.

2. Reverse 404(b)[,] Dixon argues that the actual shooter gave
   Dixon the gun after the crime had been committed. Dixon
   claims that person’s record would have supported Dixon’s
   claim.

   Counsel can find nothing in the transcripts or [trial]
   counsel’s notes that this line of defense was ever
   considered. Though the claim may have merit if it was true,
   it cannot be supported by anything in the file or
   investigation that this issue was ever discussed.

3. Failure to object to Identification instruction. Identification
   was a key issue in this trial. Counsel finds that the
   identification instruction given by the trial Judge was the
   standard instruction giving no basis for an objection.

4. Failure to object to flight instruction. Post Conviction
   Counsel finds no merit in this argument. Dixon contends
   that the police lacked probable cause to stop and detain the
   vehicle since the plates on the vehicle hew as in differed
   from what was transmitted over police radio. The fact that
   the plates were different is in fact a true statement as
   supported in the transcripts. [Appointed] Counsel, however,
   sees the basis for the instruction . . . . [Trial] Counsel could
   have objected to the instruction, however post conviction
   counsel believes the evidence as such warrants the
   instruction and an objection would have been overruled.


                          4
                     5. Failure to Object to the testimony of Carl Rhone[.] Again
                        this is a conclusive argument on the part of defendant, there
                        is nothing on the record or in the file to indicate a challenge
                        to Carl Rhone would have been productive. Counsel is
                        aware that Mr. Rhone’s credentials have been challenged
                        by counsel in other cases without success.

                     6. Other arguments raised by defendant such as failing to
                        provide client with discovery, failure to investigate, failure
                        to resubmit Motion for Judgment of Acquittal, failing to
                        raise issues on appeal, [and] failing to supply defendant
                        with the correct facts regarding witness statements and
                        improper arguments in closing again fail to show that the
                        outcome of the trial would have been different but for the
                        action or inaction of counsel.

                         ...

                     7. Defendant’s second trial on the severed charge of PFBPP
                        resulted in a finding of not guilty. Defendant claims
                        counsel was ineffective in [the] first trial for failing to
                        argue the points that led to a verdict of not guilty in the
                        second trial. Defendant’s reasoning is understandable but
                        not supportable for an ineffective claim.

                     8. In arguing that counsel was ineffective for failing to object
                        or raise the argument of Prosecutorial [Misconduct]
                        regarding improper vouching for State’s witness in closing.
                        Postconviction counsel has reviewed this argument and
                        believes the comments made by the prosecutor do not [rise]
                        to the level requiring a reversal.3

      5.     This Court finds that the contentions not addressed by Defendant’s
             appointed counsel are without merit for the reasons well stated in
             Defendant’s Amended Motion for Postconviction Relief. The
             Court addresses separately the D.R.E. 404(b) issue.

      6.     In his Amended Motion for Postconviction relief, Defendant
             contends that he is entitled to a new trial because a cautionary
             instruction was not given to the jury after the State introduced
             evidence under D.R.E. 404(b). At trial, the Court permitted the
             State to present evidence that Defendant had an argument at a bar
             with someone who would later be the driver of the car in which the
3
    Def.’s Am. Mot. for Postconviction Relief, at 1-3.
                                              5
          victim in this case was shot for the purpose of establishing intent
          and motive under D.R.E. 404(b). Defendant submits that, under
          Getz v. State,4 the Court “must” give a cautionary instruction
          concerning the purpose for which the evidence has been admitted.

    7.    At trial, Defendant’s counsel had objected to the introduction of
          evidence under Rule 404(b). However, the Court overruled the
          objection and permitted the State to present the Rule 404(b)
          evidence. The Court then proposed a cautionary instruction, to
          which Defendant’s trial counsel responded, “I prefer that it not be
          given at all. I think that it emphasizes events that I don’t want to
          happen.”5     Recognizing Defendant’s trial counsel’s tactical
          decision, the Court did not give the jury any cautionary instruction.
          Defendant now contends that a cautionary instruction is
          “mandatory” and cannot be waived for strategic purposes.
          Accordingly, Defendant submits that this alleged error warrants a
          new trial.

    8.    Defendant’s argument is inapposite, as requesting the omission of
          a cautionary instruction can be a proper tactical decision. In Major
          v. State, the Delaware Supreme Court analyzed a factually similar
          issue.6 The trial court in Major had admitted evidence pursuant to
          Rule 404(b), but the defendant’s trial counsel did not request a
          cautionary instruction as specified in Getz.7 On appeal, the
          defendant contended that this constituted reversible error.8
          However, the Delaware Supreme Court held that “no such
          instruction was requested, perhaps for tactical reasons and to avoid
          emphasis, and it was not plain error under the circumstances to
          omit such an instruction.”9 Further, in State v. Fogg, this Court
          also considered the question of whether it must provide a limiting
          instruction following the admission of “prior bad acts” evidence
          under Rule 404(b).10 This Court found that it did not err when it
          omitted such an instruction, and noted that “[trial counsel] testified
4
  Getz v. State, 538 A.2d 726, 734 (Del. 1988).
5
  Trial Tr. 40:9-12, Sept. 27, 2013.
6
  1995 WL 236658, *2 (Del. Apr. 20, 1995).
7
  Id. at *1.
8
  Id. at *2.
9
  Id.
10
   2002 WL 31053868, *27 (Del. Super. Sept. 10, 2002), aff’d, 2002 WL 31873705 (Del.
2002).
                                            6
           that he did not request such a limiting instruction specifically [for
           tactical reasons in order to avoid emphasis].”11

     9.    It is apparent that Defendant’s trial counsel requested that the
           cautionary instruction be omitted for tactical reasons. In his
           Affidavit in Response to Amended Motion for Post Conviction
           Relief, Defendant’s trial counsel stated (in addition to what he had
           advised the Court during the trial),

                  Counsel for defendant and the co-defendant, both were of the
                  belief that a cautionary instruction would be harmful to their
                  clients, rather than beneficial as it would draw further attention
                  to the prior bad act to such an extent that the court would halt
                  the trial and address the jury directly about the bad act. This
                  was a strategic decision by trial counsel.12

           As the Delaware Supreme Court held in Major, and as this Court
           held in Fogg, this type of tactical decision is appropriate under
           Delaware Law.

     10.   In contending that trial counsel was ineffective when he made a
           tactical request that the court not give a cautionary instruction
           following the admission of evidence under Rule 404(b), Defendant
           must satisfy both prongs of the Strickland standard for ineffective
           assistance of counsel.13 As the United States Supreme Court held
           in Strickland v. Washington, to prove ineffective assistance of
           counsel, a defendant must show that (1) his trial counsel’s behavior
           was deficient when compared to an objective standard of
           reasonableness, and (2) that the deficient behavior prejudiced the
           outcome of the case.14 In the case at bar, Defendant has failed to
           satisfy either prong of the Strickland analysis. As stated above,
           Defendant’s trial counsel’s tactical decision to request the Court
           omit a cautionary instruction does not constitute deficient conduct.
           Assuming, arguendo, that Defendant’s trial counsel’s strategic
           request did constitute deficient conduct, Defendant has failed to
           show how the allegedly deficient conduct prejudiced the outcome

11
   Id.
12
   Aff. in Resp. to Am. Mot. for Postconviction Relief, at 1.
13
   State v. Floray, 2000 WL 1211237, at *2 (Del. Super. Aug. 22, 2000), aff’d, 768 A.2d
469 (Del. 2001).
14
   466 U.S. 668, 687 (1984).
                                            7
             of his trial. Accordingly, Defendant’s claim that his trial counsel
             was ineffective is without merit.

      11.    Defendant also filed a Motion to Compel, requesting this Court to
             compel production of certain transcripts. In his motion, Defendant
             contends that the materials he is asking for will assist him in
             litigating his Motion for Postconviction Relief. However, because
             Defendant’s Amended Motion for Postconviction Relief is denied,
             the Court denies Defendant’s Motion to Compel as moot.

      12.    Finally, Defendant filed a Motion for Correction of Sentence under
             Superior Court Criminal Rule 35(a) with respect to his sentence for
             the PFBPP conviction. Rule 35(a) permits a defendant to petition
             the Court to “correct an illegal sentence . . . [or] correct a sentence
             imposed in an illegal manner.”15 “A sentence is illegal if it
             exceeds the statutory limits, violates double jeopardy, is
             ambiguous or internally contradictory, or is not authorized by the
             judgment of conviction.”16 In the case at bar, Defendant’s
             sentence was neither “illegal” nor was it “imposed in an illegal
             manner.” Defendant’s eight years at Level V supervision sentence
             for the charge of PFBPP was within the discretion of the Court.
             Accordingly, Defendant’s Motion for Correction of Sentence under
             Rule 35(a) is without merit.

                                   III.   CONCLUSION

Defendant’s Motion for Postconviction relief is DENIED.

Defendant’s Motion to Compel is DENIED AS MOOT.

Defendant’s Motion for Correction of Sentence is DENIED.

IT IS SO ORDERED.

                                                             /s/Richard R. Cooch
                                                             Richard R. Cooch, R.J.

15
     Super. Ct. Crim. R. 35(a).
16
     Collins v. State, 2016 WL 5369484, at *1 (Del. Sept. 23, 2016).
                                              8
oc:   Prothonotary
cc:   Investigative Services
      Matthew B. Frawley, Esq.
      Anthony A. Figliola, Jr., Esq.
      Troy M. Dixon




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