           IN THE SUPREME COURT OF THE STATE OF DELAWARE

DAEMONT WHEELER,                         §
                                         §
      Defendant Below,                   §   No. 137 & 139, 2015
      Appellant,                         §
                                         §   Court Below—Superior Court
      v.                                 §   of the State of Delaware,
                                         §   in and for Kent County
STATE OF DELAWARE,                       §   Cr. ID No. 0911008949
                                         §
      Plaintiff Below,                   §
      Appellee.                          §

                             Submitted: September 2, 2015
                             Decided:   October 19, 2015

Before STRINE, Chief Justice; HOLLAND, and SEITZ, Justices.

                                   ORDER

      This 19th day of October 2015, upon consideration of the appellant’s

Supreme Court Rule 26(c) brief, the State’s response, and the record below, it

appears to the Court that:

      (1)    On April 7, 2011, after a three day trial, a Superior Court jury found

the appellant, Daemont Wheeler, guilty of Attempted Murder in the First Degree,

Possession of a Firearm During the Commission of a Felony, Possession of a

Firearm by a Person Prohibited (“PFBPP”), and Possession of Firearm

Ammunition by a Person Prohibited (“PFABPP”). These convictions arose from

the shooting of Herbie Davis. Wheeler was declared a habitual offender under 11

Del. C. § 4214(a). Wheeler was sentenced to life imprisonment for Attempted
Murder in the First Degree and thirty eight years of Level V imprisonment for the

other offenses.

       (2)    On direct appeal, Wheeler argued that his Sixth Amendment Right to

Confrontation was violated when the Superior Court admitted statements into

evidence that were made by people who did not testify at trial.1 We held that the

Superior Court did not err in permitting Davis to testify that shortly after Wheeler

shot him, an eyewitness told Davis’ sister that Wheeler shot Davis.             The

eyewitness’ statement fell within the present sense impression and excited

utterance exceptions to the hearsay rule. 2 We also held that the Superior Court

erred in permitting a police officer to testify that Wheeler was his only suspect in

Davis’ shooting after he interviewed three people who were not present at trial.

This testimony constituted indirect hearsay and violated the Confrontation Clause

of the Sixth Amendment. 3 In light of the cumulative nature of the testimony and

Davis’ “compelling” and “emphatic eyewitness identification of Wheeler as the

person who shot him,” we concluded that the error in admitting the police officer’s

testimony was harmless beyond a reasonable doubt and therefore affirmed the

judgments of the Superior Court. 4



1
  Wheeler v. State, 36 A.3d 310, 312 (Del. 2012).
2
  Id. at 315.
3
  Id. at 315-20.
4
  Id. at 321.


                                               2
      (3)      On October 3, 2012, Wheeler filed a motion for appointment of

counsel, which the Superior Court denied. On December 11, 2012, Wheeler filed a

timely motion for postconviction relief under Superior Court Criminal Rule 61

(“Rule 61”). Wheeler contended that his trial counsel and appellate counsel were

ineffective, his right to a speedy trial was violated, and there was prosecutorial

misconduct. The Superior Court referred Wheeler’s motion to a Superior Court

Commissioner, who directed Wheeler’s former attorneys to submit affidavits and

set a briefing schedule. Wheeler filed two more motions for appointment of

counsel, which the Superior Court Commissioner and the Superior Court denied.

      (4)    On August 20, 2013, the Superior Court Commissioner found that

Wheeler’s speedy trial and prosecutorial misconduct claims were barred by Rule

61(i)(3), and that his ineffective assistance of counsel claims did not satisfy the

two-prong standard in Strickland v. Washington.5                 The Superior Court

Commissioner recommended that the Superior Court deny Wheeler’s motion for

postconviction relief. Wheeler filed objections to the report and recommendations

of the Superior Court Commissioner.             The Superior Court accepted the

recommendation of the Superior Court Commissioner and denied Wheeler’s

motion for postconviction relief.6


5
 466 U.S. 668 (1984).
6
 State v. Wheeler, 2013 WL 5881705 (Del. Super. Ct. Oct. 3, 2013), vacated, 2014 WL 44715
(Del. Jan. 2, 2014).


                                           3
         (5)    On appeal, this Court concluded that the Superior Court abused its

discretion in denying Wheeler’s motion for appointment of counsel.7 We vacated

the Superior Court’s October 3, 2013 decision and remanded the matter to the

Superior Court for the appointment of counsel to represent Wheeler on his first

motion for postconviction relief.8

         (6)    On January 31, 2014, the Superior Court appointed postconviction

counsel (“Postconviction Counsel”) to represent Wheeler. On January 27, 2015,

Postconviction Counsel filed a motion to withdraw and supporting memorandum.

Postconviction Counsel represented that Wheeler’s claims lacked sufficient merit

to be ethically advocated and that they had not discovered any other potential

meritorious grounds for relief. Wheeler opposed the motion to withdraw. The

Superior Court granted the motion to withdraw and denied Wheeler’s motion for

postconviction relief.

         (7)    Wheeler and Postconviction Counsel filed notices of appeal from the

Superior Court’s order and the appeals were consolidated. Postconviction Counsel

filed a motion for appointment of substitute counsel.        This Court permitted

Postconviction Counsel to withdraw and appointed substitute counsel (“Appellate

Postconviction Counsel”).



7
    Wheeler v. State, 2014 WL 44715, at *1.
8
    Id.


                                              4
         (8)     On July 20, 2015, Appellate Postconviction Counsel filed a brief and

a motion to withdraw under Supreme Court Rule 26(c). Appellate Postconviction

Counsel asserts that, based upon a complete and careful examination of the record,

there are no arguably appealable issues.                Appellate Postconviction Counsel

informed Wheeler of the provisions of Rule 26(c) and provided Wheeler with a

copy of the motion to withdraw and the accompanying brief.                            Appellate

Postconviction Counsel also informed Wheeler of his right to identify any points

he wished this Court to consider on appeal. Wheeler submitted a memorandum

and exhibits. The State has responded to Wheeler’s points and asked this Court to

affirm the Superior Court’s judgment.

         (9)     When reviewing a motion to withdraw and an accompanying brief

under Rule 26(c), this Court must: (i) be satisfied that defense counsel has made a

conscientious examination of the record and the law for arguable claims; and (ii)

conduct its own review of the record and determine whether the appeal is so totally

devoid of at least arguably appealable issues that it can be decided without an

adversary presentation.9          This Court reviews the Superior Court’s denial of

postconviction relief for abuse of discretion and questions of law de novo. 10 When

reviewing the Superior Court’s denial of a motion for postconviction relief, this



9
    Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).
10
     Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).


                                                 5
Court must first consider the procedural requirements of Rule 61 before addressing

any substantive issues. 11

          (10) Wheeler’s arguments on appeal may be summarized as follows: (i) his

trial counsel was ineffective for not moving to sever the PFBPP and PFABPP

charges; (ii) his trial counsel was ineffective for cross-examining the State’s

ballistics expert without a copy of the expert’s report; (iii) his trial counsel was

ineffective for failing to consult with a medical expert before cross-examining

Davis; (iv) his trial counsel was ineffective for failing to object to the prosecutor’s

vouching during closing arguments; (v) his appellate counsel was ineffective for

failing to raise the prosecutor’s vouching; and (vi) his appellate counsel was

ineffective for failing to argue that the State violated Superior Court Criminal Rule

26.2 and withheld material exculpatory evidence when it did not produce a tape

recorded statement Davis made to the police.

          (11) To prevail on an ineffective assistance of counsel claim, a defendant

must establish that: (i) his counsel’s representation fell below an objective standard

of reasonableness; and (ii) but for counsel’s unprofessional errors, there is a

reasonable probability that the outcome of the proceedings would have been

different.12      The Strickland standard leads to a “strong presumption that the



11
     Younger v. State, 580 A.2d 552, 554 (Del. 1990).
12
     Strickland, 466 U.S. at 687-88.


                                                 6
representation was professionally reasonable.”13 The defendant must also set forth

and substantiate concrete allegations of actual prejudice.14

       (12) Wheeler contends that his trial counsel’s failure to file a motion for

severance of the PFBPP and PFABPP charges constitutes ineffective assistance.

Wheeler does not cite any authority to support this contention.             The parties

stipulated at trial that Wheeler was prohibited from possessing a firearm after

having been convicted of a felony or a crime of violence involving physical injury.

Wheeler’s trial counsel prepared a redacted form of the indictment that eliminated

references to Wheeler’s previous conviction for Assault in the Second Degree.

       (13) Even if stipulating to Wheeler’s person prohibited status rather than

filing a motion to sever was professionally unreasonable, Wheeler has not shown

that there is a reasonable probability that, but for the supposed error, the outcome

of the trial would have been different.              As we recognized on direct appeal,

“Wheeler was well-known to Davis” and Davis’ identification of Wheeler as the

person who shot him was “compelling” and “emphatic.” 15 Wheeler has therefore

not satisfied the second prong of the Strickland analysis.

       (14) Wheeler next claims that his trial counsel was ineffective for cross-

examining the State’s ballistics expert without the benefit of the ballistics expert’s


13
   Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
14
   Younger v. State, 580 A.2d 552, 556 (Del.1990).
15
   Wheeler v. State, 36 A.3d at 321.


                                               7
report. Wheeler acknowledges that it is unclear from the record whether his trial

counsel received the ballistics expert’s report before the expert testified. The

record does reflect that the ballistics expert report was admitted as a trial exhibit

before Wheeler’s trial counsel cross-examined the expert.         Wheeler does not

identify the information in the report that he claims the expert should have been

cross-examined about by Wheeler’s trial counsel.

      (15) Wheeler has not shown his trial counsel’s cross-examination of the

ballistics expert was deficient. The State’s case was based primarily on eyewitness

identification, not ballistics testimony. The ballistics expert testified that the six

shell casings found on the scene were from the same semi-automatic gun that could

have been manufactured by several different companies. On cross-examination,

Wheeler’s trial counsel elicited testimony from the ballistics expert that he had no

idea who shot Davis and that it is possible to leave a fingerprint on a shell casing.

During closing argument, Wheeler’s trial counsel highlighted that there was no

evidence of Wheeler’s fingerprints appearing on any of the shell casings. Under

these circumstances, Wheeler has not shown that his trial counsel’s cross-

examination of the ballistics expert fell below an objective standard of

reasonableness.

      (16) Wheeler next contends that his trial counsel was ineffective for failing

to consult with a medical expert before he cross-examined Davis. Wheeler claims



                                          8
that if his counsel had consulted a medical expert, he could have impeached Davis

regarding his testimony that after he was shot in the back, he turned to see Wheeler

holding a gun. Wheeler speculates that Davis, who could not feel his legs after the

shooting and was confined to a wheelchair as a result of the shooting, could not

have turned to see who shot him. Wheeler offers nothing to substantiate his

speculation that a medical expert would have concluded the shooting left Davis

unable to turn his head and see who shot him. Wheeler also disregards that Davis

testified that he heard Wheeler say he disliked Davis before shooting him.

Wheeler’s speculation regarding what a medical expert might conclude does not

overcome the strong presumption that trial counsel’s representation was reasonable

or show a reasonable probability of a different outcome at trial.16

       (17) Wheeler next argues that his trial counsel should have objected to the

prosecutor’s improper vouching during closing argument, and his appellate counsel

should have raised the issue on appeal. In his closing argument, the prosecutor

stated:

       What does he [Wheeler] do, then? He goes outside, the State would
       suggest, to go get his gun, or he got it when he went back down into
       the basement, and came back up, but we know he did get a gun. And
       we know he pulled it out. And we know he shot the gun six times at



16
  See, e.g., Flamer v. State, 585 A.2d at 755 (finding no prejudice where defendant asked Court
to speculate that if medical examiner had been asked certain questions, medical examiner’s
responses would have been beneficial to defense).


                                              9
       Herbie Davis, striking him four times. We also know that all of those
       shots came from the same gun.17

“[I]mproper vouching occurs when the prosecutor implies personal superior

knowledge, beyond that logically inferred from the evidence at trial.” 18 Even

assuming the prosecutor’s statements constituted impermissible vouching rather

than logical inferences from the evidence at trial and Wheeler could satisfy the first

prong of Strickland, Wheeler has not established a reasonable probability that the

outcome of the proceedings would have been different given the record in this

case, including Davis’ “emphatic” and “compelling” identification of Wheeler as

the person who shot him. 19

       (18) Finally, Wheeler claims his appellate counsel was ineffective for

failing to argue that the State violated Superior Court Criminal Rule 26.2 and

withheld material exculpatory evidence when it did not produce a taped statement

Davis made to the police. Wheeler also appears to suggest that his appellate

counsel should have raised the fact that Davis was provided a copy of police

reports and statements of other witnesses before Davis testified.          The taped

statement claim is based on Detective Ryder’s testimony at an April 2010

preliminary hearing that Davis gave a taped statement, and Davis’ testimony at

trial that he gave a recorded statement to Detective Ryder. The rest of the record,

17
   Appendix to Appellant’s Brief Under Rule 26(c) at A-459.
18
   Kirkley v. State, 41 A.3d 372, 377 (Del. 2012).
19
   Wheeler v. State, 36 A.3d at 321.


                                             10
however, does not support Wheeler’s claim that the State failed to produce a tape

recorded statement made by Davis.

      (19) Before Wheeler’s trial counsel cross-examined Davis at trial, he asked

the State to produce any statements Davis gave to the police. The prosecutor stated

that there were no such statements. When Detective Ryder was cross-examined by

Wheeler’s trial counsel, Detective Ryder testified that he never took a statement

from Davis and there was no taped statement. In his closing argument, Wheeler’s

trial counsel emphasized that Detective Ryder never took a statement from Davis

in depicting the police investigation as incomplete and insufficient. Under these

circumstances, Wheeler has not shown that his appellate counsel was unreasonable

in not arguing on appeal that the State had violated its disclosure obligations.

      (20) To the extent Wheeler complains that his appellate counsel should

have argued on appeal that it was improper for Davis to view police reports and

witness statements before he testified, he does not point to anything that prohibited

Davis from viewing the reports and statements. In his cross-examination of Davis,

Wheeler’s trial counsel used Davis’ review of the police reports to suggest Davis’

testimony was based on the reports rather than his own memory of the shooting.

Wheeler has failed to show that his appellate acted unreasonably in not arguing on

appeal that it was improper for Davis to review the police reports.




                                          11
      (21) This Court has reviewed the record carefully and has concluded that

Wheeler’s appeal is wholly without merit and devoid of any arguably appealable

issue. We also are satisfied that Appellate Postconviction Counsel has made a

conscientious effort to examine the record and the law and has properly determined

that Wheeler could not raise a meritorious claim in this appeal.

      NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED. The motion to withdraw is moot.

                                       BY THE COURT:


                                       /s/ Collins J. Seitz, Jr.
                                              Justice




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