IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )

Plaintiff, §

v. )) ID No. 0909018475A & B
MICHAEL WASHINGTON, §

Defendant. §

Submitted: October 7, 2016, 2016
Decided: October 19, 2016

Upon Defendant’s Appeal from Commissioner’s Findings of Fact and
Recommendation,
AFFIRMED.
Upon Defendant’s Amended Motion for Postconviction Relief and Supplemental
Claims,

DENIED.

Upon Motion to Withdraw as Counsel of AndreW J. Witherell, Esquire,
GRANTED.

ORDER
Karin M. Volker, Esquire, Deputy Attorney General, Department of Justice, 820
North French Street, Wilmington DE 19801, Attorney for the State.

Andrew J. Witheren, Esquire, 100 East 14th Street, Wilmington, DE 19801,
Attorney for the Defendant.

Michael Washington, pro se, Smyrna, DE 19977.

WHARTON, J.

This 19th day of October, 2016, upon consideration of` Defendant Michael
Washington’s (“Washington”) Arnended Motion f`or Postconviction Relief
(“Arnended Motion”), the State’s Response to Washington’s Amended Motion for
Postconviction Relief, Washington’s Reply to the State’s Response, the Motion to
Withdraw as Counsel of` Andrew J. Witherell, Esquire, Washington’s final
Amended Motion and Supplernental Claims, the Commissioner’s Report and
Recommendation on Def`endant’s Pro Se Motion for Postconviction Relief` and
Rule 61 Counsel’s Motion to Withdraw (“Report”), Washington’s Appeal from
Commissioner’s Findings of Fact and Recornmendations (“Appeal”), and the
record in this case, it appears to the Court that:

l. In the Report, the Commissioner details the extensive procedural
history of` this case culminating in his Report.1 The Court sees no reason to repeat
that history here and adopts the Commissioner’s recitation. The Court only adds
that it is Worth noting that both the Commissioner and his retired predecessor
afforded Washington every reasonable opportunity to advance his postconviction
claims. The Commissioner filed his Report on Septernber 27, 206 and Washington
filed his timely appeal on October 7, 2016.

2. Sirnilarly, the Commissioner draws on the Delaware Supreme Court’s

 

1D.I. 147 at 4-10.

Order on appeal dated October 14, 2011 to present the facts of the case.2 The
Court adopts that recitation of facts as well.

3. The Commissioner summarized Washington’s final amended and
supplemental claims for postconviction relief, in Washington’s own words as
follows:

Ground One: Trial Counsel was ineffective for failing to move to suppress the out-
of-court hearsay statements of the State’s witnesses

Ground Two: The Prosecutor committed plain error through the manipulation of
facts mislead the jury as to the conditions of Christopher Waterman’s federal plea
agreement.

Ground Three: The Prosecutor committed plain error denying the defendant the
right to a fair trial by manipulating trial evidence and vouching for the State’s
witnesses.

Ground Four: Trial Court committed plain error by allowing Detective Ciritella to
testify as an expert on State’s forensic science evidence.

Supplemental Claim One: The prosecution improperly interjected into the trial
information regarding where the shooter was seated in the vehicle that was not
factually supported based on the testimony of the State’s ballistic expert, Carl
Rone.

Supplemental Claim Two: Prosecutorial Misconduct. The State improperly
argued that the two bullet fragments recovered by Det. Ciritella from in front of
April Gardner’s house had been fired from the same gun as that used to kill the
victims was improper and unsupported by expert testimony.

Supplemental Ground Three: The Court abused its discretion and deprived
defendant of the right to adequately cross-examine the State’s expert Witness
following a jury view of the actual vehicle in which the victims were killed.3

 

2 Id. at 1-3 (citing Washington v. State 2011 WL 4908250 (Del. October, 2011)).
3 Id. at 9-10.

3. Under Delaware Superior Court Rules of Criminal Procedure, a motion
for post-conviction relief can be barred for time limitations, repetitive motions,
procedural defaults, and former adjudications A motion exceeds time limitations if
it is filed more than one year after the conviction becomes final or if it asserts a
newly recognized, retroactively applied right more than one year after it was first
recognized4 A motion is considered repetitive and therefore barred if it asserts any
ground for relief “not asserted in a prior post-conviction proceeding.”5 Repetitive
motions are only considered if it is “warranted in the interest ofjustice.”6 Grounds
for relief “not asserted in the proceedings leading to the judgment of conviction” are
barred as procedurally defaulted unless the movant can show “cause for relief” and

7 Grounds for relief formerly adjudicated in the

“prejudice from [the] violation.”
case, including “proceedings leading to the judgment of conviction, in an appeal, in
a post-conviction proceeding, or in a federal habeas corpus hearing” are barred.8
Former adjudications are only reconsidered if “warranted in the interest of justice.”9

4. Before addressing the merits of a defendant’s motion for postconviction

relief`, the Court must first apply the procedural bars of Superior Court Criminal

 

4 super. ct crim. R. 61(i)(1).
5 super. ct. Crim. R. 61(1)(2).
6 Id.
7 Super. Ct. Crim. R. 61(i)(3).
8 Super. Ct. Crim. R. 6l(i)(4).
9 ld.

Rule 61(i).10 If a procedural bar exists, then the Court will not consider the merits of
the postconviction claim.ll

4. Of the four grounds for relief advanced in Washington’s Amended
Motion and the three Supplemental Grounds, only one claim - the claim that
counsel was ineffective for failing to move to suppress out of court hearsay
statements of State’s witnesses - clearly alleges ineffective assistance of counsel
and is not subject to the procedural bars to relief of Rules 6l(i)(1)-(4). The
remaining six claims for relief, with the possible exception of Supplemental Claim
One, are subject to the procedural bars unless Washington can show that new
evidence exists that creates a strong inference that he is actually innocent in fact12
or that a new retroactively applicable rule of constitutional law applies to his
case.13 Since neither of those two circumstances is present here, the bars to relief
apply.

5. The Commissioner applied the bar of Rule 61(i)(3), procedural
default, to Ground Two, prosecutorial misconduct concerning Christopher
Waterman’s federal plea agreement;14 Ground Three, prosecutorial misconduct by

manipulating evidence and vouching for State’s witnesses;15 Ground Four, plain

 

:‘l’ YOunger v. Smre, 580 A.zd 552, 554 (Del. 1990).
ld.

12 super. Ct. Crim. R. 61(d)(2)(i).

13 Super. Ct. Crim. R. 61(d)(2)(ii).

14 D.I. 147 at 16.

15 Id. at17.

error by the trial court in permitting a detective to testify as an expert;16

7 and

Supplemental Claim One, prosecutorial misconduct in summation;l
Supplemental Claim Three, prosecutorial misconduct/abuse of discretion18 None
of the claims were asserted in the proceedings leading to the judgment of
conviction, and are barred since Washington has failed to show cause for relief
from his procedural default and prejudice from a violation of his rights.

6. The Commissioner applied the bar of Rule 61(i)(4), former
adjudication, to Supplemental Claim Two, prosecutorial misconduct relating to a
ballistics argument19 This argument was raised unsuccessfully by Washington in
his appeal to the Delaware Supreme Court.20

7. The Commissioner addressed Grounds One, counsel’s failure to move to
suppress witnesses’ out of court statements, and Supplemental Claim One,
prosecutorial misconduct in summation, as ineffective assistance of counsel
claims.21 To successfully bring an ineffective assistance of counsel claim, a

claimant must demonstrate: (1) that counsel’s performance was deficient; and (2)

that the deficiencies prejudiced the claimant by depriving him or her of a fair trial

 

16 Id. at 18.

17 Id. at 19. The Commissioner also addressed this claim as an ineffective assistance of counsel
claim.

18 Ia'. at 24.

19 Id. at 23.

20 Washington at *4.

21 D.I. 147 at 14, 20. In addition, the Commissioner addressed Supplemental Claim One in the
context of procedural default

with reliable results.22 To prove counsel’s deficiency, a defendant must show that
counsel’s representation fell below an objective standard of reasonableness23
Moreover, a defendant must make concrete allegations of actual prejudice and
substantiate them or risk summary dismissal24 “[A] court must indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable

”25 A successful Sixth Amendment claim of ineffective

professional assistance
assistance of counsel requires a showing “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.”26 An inmate must satisfy the proof requirements of both prongs to
succeed on an ineffective assistance of counsel claim. Failure to do so on either
prong will doom the claim and the Court need not address the other.27 The
Commissioner found that both of Washington’s ineffective assistance of counsel
claims failed both the performance and prejudice prongs of St‘ricklcma'.28
8. On September 27, 2016, the Commissioner issued his report and

Recommendation on Defendant’s Pro Se Motion for Postconviction Relief and

Rule 61 Counsel’s Motion to Withdraw that Washington’s Amended Motion and

 

22 strickland v, Washington, 466 U.s. 668, 688 (1984).

22 ld. 31.66.':_68.

24 Wr:gh: v. Sm,»e, 671 A.zd 1353, 1356 (r)ei. 1996).

25 Srrzckzcmd, 446 U.s. at 689.

261d. at 694.

27 Srrickland, 466 U.s. at697;P100f v. srare, 75 A.3d 811, 825 (De1. 2013) (“S¢rickland is a
two-pronged test, and there is no need to examine whether an attorney performed deficiently if
the deficiency did not prejudice the defendant.”).

28r).1. 147 at 14, 20.

Supplemental Claims for postconviction relief be DENIED and Andrew J.
Witherell’s Motion to Withdraw as Counsel be GRANTED.

THEREFORE, after careful and de novo review of the record in this action,
and for the reasons stated in the Commissioner’s comprehensive and well reasoned
Report and Recommendation that Washington’s Amended Motion and
Supplemental Claims for postconviction relief be DENIED, and having carefully
considered Washington’s appeal thereof, the Commissioner’s Report and
Recommendation on Defendant’s Pro Se Motion for Postconviction Relief and
Rule 61 Counsel’s Motion to Withdraw is AFFIRMED, Washington’s Amended
Motion and Supplemental Claims for postconviction relief are DENIED, and

Andrew J. Witherell’s Motion to Withdraw as Counsel is GRANTED.

jM/'

Ferqls W. {Vharton, J.

IT IS SO ORDERED.

oc: Prothonotary
cc: Investigative Services Office

