IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

Plaintiff, )

)

)

v ) Cr. ID. No. 1304026571

)

)

KAHLIL D. LEWIS, )
)

Defendant. )

Submitted: August 6, 2018
Decided: November 5, 2018

CDMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
SHOULD BE DENIED
AND
EULE 61 COUNSEL’S MOTION 'I`O WITHDRAW SHOULD BE GRANTED.

Kathryn S. Keller, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, DelaWare, Attorney for the State.

Christopher S. Koyste, Esquire, Law Offlces of Christopher S. Koyste, LLC, Attorney for
Defendant Kahlil D. Lewis.

PARKER, Commissioner

This 5th day of November, 2018, upon consideration of Defendant’s Motion for

Postconviction Relief, it appears to the Court as follows:
BACKGROUND AND PROCEDURAL HISTORY

Defendant Kahlil D. Lewis was arrested on April 30, 2013 and indicted on June
24, 2013. He was charged with the following offenses: one count of Murder Second
Degree, two counts of Possession of a Firearm During the Commission of a Felony
(“PFDCF”), one count of Reckless Endangering First Degree, and one count of
Possession of a Firearm by a Person Prohibited (“PFBPP”). The PFBPP charge was
pursuant to 11 Del. C. § 1448.

These charges stemmed from a confrontation between Defendant Lewis and
Toney Morgan which ended in the death of Toney Morgan.

An information was filed on December 18, 2013 and a re-indictment Was issued
on December 23, 2013 modifying the PFBPP count to PFBPP pursuant to ll Del. C. §
l448(e)(2). The re-indictment alleged that Mr. Lewis had negligently caused the death of
Mr. Morgan while in possession of a firearm as a person prohibited (hereinafter referred
to as “PFBPP-NCD”).

Mr. Lewis admittedly is a person prohibited from possessing a firearm. Mr.
Lewis admittedly killed Toney Morgan with a firearm. Mr. Lewis contended,
nonetheless, that he was not guilty of PFBPP-NCD because he only possessed the firearm
momentarily and used it only in self-defense, having wrestled it away from Morgan, who

was attacking him. The Superior Court charged the jury that if Defendant Lewis only

possessed and used the weapon momentarily in self-defense, then he was not guilty of
PFBPP.

The parties submitted their respective positions on the availability of a
justification defense at trial in relation to the PFBPP charge. On November 20, 2013, the
Superior Court ruled that the justification defense was available on the PFBPP charge.1

Against the advice of counsel, Lewis rejected the State’s various plea offers on
December 16, 2013, December 18, 2013 and January 6, 2014.2

On December 27, 2013, Mr. Lewis filed a pro se letter requesting that new
counsel be appointed. The court denied the request without prejudice in a January 2, 2014
letter/order. 3

The State dismissed two of the five indicted charges prior to trial: the murder and
related weapons charge. Trial began on January 7, 2014 with the State proceeding on the
remaining three charges: Reckless Endangering First Degree, PFDCF, and PFBPP-NCD.
The defense’s mid-trial motion for judgment of acquittal was denied by the court.4

Following a six-day jury trial, on January 14, 2014, the jury acquitted Lewis of
the first two charges, Reckless Endangering First Degree and PFDCF. The jury
convicted Lewis of PFBPP-NCD.

Lewis filed a motion for judgment of acquittal on January 17, 2014, which was
denied by the court.5 In addition to the motion for acquittal, filed by counsel, Lewis had

written letters to the court. The court’s Order denying the motion for judgment of

 

l See, Superior Court Docket No. 18.

2 December 16, 2013 Final Case Review Transcript, at pg. 31; December 18, 2013 Hearing Transcript, at
pgs. 2-9; January 6, 2014 Plea Rejection Colloquy Transcript, at pgs. 2-14; Superior Court Docket No. 26-
letter li‘om court denying Lewis’ request for new counsel.

3 Superior Court Docket No. 26- letter from court denying Lewis’ request for new counsel

4 Superior Court Docket No. 44.

5 State v. Lewis, 2014 WL 3706551 (Del.Super.).

acquittal also addressed and denied the claims raised by Lewis in his pro se letters to the
court.6

On November 20, 2014, Lewis filed a Petition for a Writ of Habeas Corpus which
was denied by the court on December 10, 2014.7

On February 13, 2015, Lewis was sentenced on the PFBPP-NCD conviction to
twenty-five years at Level V, suspended after seven years for decreasing levels of
supervision. Defendant Lewis was also sentenced contemporaneously for a violation of
probation stemming from a drug dealing conviction for which he received eight years at
Level V.8

Defendant Lewis filed a direct appeal to the Delaware Supreme Court. On
August 4, 2016, the Delaware Supreme Court affirmed the judgment of the Superior
Court.9

FA_CT_S

The facts of the incident at issue were set forth by the Delaware Supreme Court in
its decision on Lewis’ direct appeal.10

As stated by the Delaware Supreme Court, on April 27, 2013, Lewis drove to the
600 block of Jefferson Street in Wilmington in search of people who attacked his friend
the day before.]l When he arrived, Lewis found several adults and children hanging
around the street. Words were exchanged, and shots were fired. During the exchange of

gunfire, one of the people on the street, Toney Morgan, was shot dead. Witnesses claimed

 

6 State v. Lewis, 2014 WL 3706551, at * 2-3 (Del.Super.).
7 Superior Court Docket Nos. 53 & 54.

8 State v. Kahlil D. Lewis, Criminal ID No. 1111020024.
9Lewis v. State, 144 A.3d 1109 (Del. 2016).

10 Lewis v. State, 144 A.3d 1109 (Del. 2016).

llld. at 1111-1112.

they saw Lewis shoot Morgan. Lewis was also shot in the face, though it was never
established who shot him.12

RULE 61 MOTION AND COUNSEL’S MOTION TO WITHDRAW

Lewis filed a timely pro se motion for postconviction relief and request for the
appointment of counsel on July 26, 2017. Rule 61 counsel was appointed and given
leave to amend Lewis’ pro se motion. On October ll, 2017, Lewis filed a pro se motion
for amendment of Rule 61.

On July 9, 2018, assigned counsel filed a Motion to Withdraw as Postconviction
Counsel pursuant to Superior Court Criminal Rule 61(e)(6). Superior Court Criminal
Rule 6l(e)(6) provides that:

If counsel considers the movant’s claim to be so lacking in
merit that counsel cannot ethically advocate it, and counsel is
not aware of any other substantial ground for relief available to
the movant, counsel may move to withdraw. The motion shall
explain the factual and legal basis for counsel’s opinion and
shall give notice that the movant may file a response to the
motion within 30 days of service of the motion upon the
movant.

In the motion to withdraw, Lewis’ Rule 61 counsel represented that, after
undertaking a thorough analysis of the Defendant’s claims, counsel has determined that
the claims are so lacking in merit that counsel cannot ethically advocate any of them.13

Counsel further represented that, following a thorough review of the record, counsel was

not aware of any other substantial claim for relief available to Lewis.14 Lewis’ Rule 61

 

12 Id_

13 See, Superior Court Docket Nos. 103, 104 & 105- Defendant’s Rule 61 counsel’s Motion to Withdraw
along With the accompanying Memorandum in Support of Motion to Withdraw.

14 Superior Court Docket No. 103, at pg. 31.

counsel represented to the court that there are no potential meritorious grounds on which
to base a Rule 61 motion and has therefore sought to withdraw as counsel.15

On July 9, 2018, Lewis’ Rule 61 counsel advised Lewis of his motion to withdraw
and advised Lewis that he had the right to file a response thereto within 30 days, if Lewis

desired to do so.16

Despite the fact that over 90 days has elapsed, Lewis has not
responded to counsel’s pending Motion to Withdraw.

ln order to evaluate Lewis’ Rule 61 motion and to determine whether his Rule 61
counsel’s motion to withdraw should be granted, the court should be satisfied that Rule
61 counsel made a conscientious examination of the record and the law for claims that
“ could arguable support Lewis’ Rule 61 motion. In addition, the court should conduct its
own review of the record in order to determine whether Lewis’ Rule 61 motion is so
totally devoid of any, at least, arguable postconviction claims.17

DEFENDANT’S RULE 61 MOTION IS WITHOUT MERIT

Lewis raised a number of claims in his pro se motion for postconviction relief,
which he filed on July 26, 2017, and amended on October 11, 2017.

Before addressing each of Lewis’ claims in turn, it is important to note that some
of the claims raised herein are procedurally barred either because the claim had been
previously adjudicated on direct appeal or because Lewis failed to raise the claim on
direct appeal as required.

lt is also important to emphasis that the evidence at trial against Lewis was

overwhelming A witness observed a person running from the scene of the shooting,

 

15 Id

16 See, Superior Court Docket No. 103- letter dated July 9, 2018 advising Lewis of the Motion to
Withdraw.

17 Mazos v. S¢a¢e, 2015 wL 5719694, *2 (Del.).

wiping blood from his face and hiding a gun on top of her neighbor’s outdoor grill.18
Lewis was suffering from a gunshot wound to his face and wearing clothing matching the

witness’ description.19

A blood trail lead directly from the scene of the shooting to the
outdoor grill (where the gun was hidden).20 A 9-millimeter firearm was found on top of
the grill and contained Lewis’ DNA.21 Lewis’ DNA was also found on the blood trail
leading from the scene to the grill, blood on the gun, blood on the grill, and blood around
the area of the grill.22

Four 9-millimeter shell casings found at the scene of the shooting were confirmed
as being fired from the 9-millimeter gun found hidden on the grill.23 A 9-millimeter
bullet recovered from Mr. Morgan’s thigh wound could have been fired from the
recovered 9-millimeter gun.24

Several witnesses present at the scene of the shooting testified that they either saw
Lewis pull out a gun and begin shooting or saw Lewis walk up to the congregath
individuals and engage in a conversation and/or argument.25

Lewis testified at trial that he engaged in a physical struggle with Mr. Morgan
after he heard a click he believed to be from a gun and in wrestling with Mr. Morgan for

control of the gun, it went off.26

 

13 January 8, 2014 Trial Transcript, at pgs.152-161, l7l-l77.

19 January 8, 2014 Trial Transcript, at pgs. 156-161, 171; January 10, 2014 Trial Transcript, at pgs. 83-85,
144-146, 159.

20 January 7, 2014 Trial Transcript, at pgs. 59-66,

21 January 7, 2014 Trial Transcript, at pgs. 61-65, 175-178; January 9, 2014 Trial Transcript, at pgs. 145-
148.

22 January 9, 2014 Trial Transcript, at pgs. 145-151.

23 January 9, 2014 Trial Transcript, at pgs. 121.

24 January 9, 2014 Trial Transcript, at pgs. 79-90, 122.

25 January 7, 2014 Trial Transcript, at pgs. 79-82, 85-106; January 8, 2014 Trial Transcript, at pgs.35-40,
59-62, 66-70; January 10, 2014 Trial Transcript, at pgs.l 1-23; 29-30.

26 January 10, 2014 Trial Transcript, at pgs. 140-152.

Despite the procedural bars and overwhelming evidence, each of Lewis’ claims
will be discussed in turn.

Claim I: Trial Col_lgsel Was Ineffective for Failing to Contest the Re-Indictment

In Lewis’ pro se Rule 61 submission, Lewis claims that trial counsel was
ineffective for failing to contest the re-indictment issued two weeks before trial.

To prevail on a claim of ineffective assistance of counsel, the defendant must
satisfy the two-prong standard of Strickland v. Washington.27 This test requires that
defendant prove that trial counsel’s performance was objectively unreasonable and that
the defendant was prejudiced as a result.28

Under the first prong, judicial scrutiny is highly deferential. Courts must ignore
the distorting effects of hindsight and proceed with a strong presumption that counsel’s
conduct was reasonable.29 The Strickland Court explained that a court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on
the facts of the particular case, viewed as of the time of counsel’s conduct.30

Under the second prong, it is not enough for the defendant to show that the errors
had some conceivable effect on the outcome of the proceeding.31 In other words, not
every error that conceivably could have influenced the outcome undermines the
reliability of the result of the proceeding32 Some errors will have a pervasive effort and
some will have had an isolated, trivial effect.33 The movant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

 

27 Strickland v. Washington, 466 U.S. 668 (1984).
28 Id. at 694.

29 ld. at 689.

30 Id. at 690.

31 Id. at 693.

32 Id. at 693.

33 Id. at 695-96.

proceeding would have been different.34 A reasonable probability is a probability
sufficient to undermine confidence in the outcome.35 The court must consider the totality
of the evidence and must ask if the movant has met the burden of showing that the
decision reached would reasonably likely have been different absent the errors.36

Mere allegations of ineffectiveness will not suffice; instead, a defendant must
make and substantiate concrete allegations of actual prejudice.37 Although not
insurmountable, the Strickland standard is highly demanding and leads to a strong
presumption that counsel’s conduct fell within a wide range of reasonable professional

assistance38

Moreover, there is a strong presumption that defense counsel’s conduct
constituted sound trial strategy.39

In Harringlon v. Richter,40 the United States Supreme Court explained the high
bar that must be surmounted in establishing an ineffective assistance of counsel claim. In
Harrington, the United States Supreme Court explained that representation is
constitutionally ineffective only if it so undermined the proper functioning of the
adversarial process that the defendant was denied a fair trial.41 Counsel’s representation
must be judged by the most deferential of standards.42

Turning now to Lewis’ first claim, Lewis claims that counsel was ineffective for

failing to contest the re-indictment issued two weeks before trial. Lewis raised this issue

on direct appeal and the Delaware Supreme Court fully adjudicated whether the re-

 

34 Dale v. State, 2017 WL 443705, * 2 (Del. 2017); Strickland v. Washington, 466 U.S. 668, 694 (1984).
35 [d

36 Dale v. State, 2017 WL 443705, * 2 (Del. 2017); Strl`cklandv. Washington, 466 U.S. 668, 695-696
(1984).

37 Younger v. State, 580 A.2d 552, 556 (Del. 1990).

33 Alburjy v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008).

39 Strickland v. Washington, 466 U.S. 668, 689 (1984).

‘1° Harrington v. Richter, 131 S.Ct. 770 (2011).

41 Id. at * 791.

42 Id. at *787-88.

indictment was valid and properly issued.43 This issue having already been fully
adjudicated is now procedurally barred as previously adjudicated44

On June 24, 2013, the Grand Jury indicted Lewis on, inter alia, a charge of
PFBPP in violation of 11 Del.C. § 1448.45 On December 23, 2013, Lewis was re-
indicted. The re-indictment added an allegation that while Defendant, a person
prohibited, possessed the firearm, he negligently caused Morgan’s death in violation of
11 Del.C .§ 1448(e)(2).46 Two weeks after the re-indictment, on January 7, 2014, Lewis
went to trial.

Unknown to the State or Lewis, the General Assembly mistakenly repealed
§l448(e)(2) on July 18, 2013. It appears that when it amended parts of the previous
subsection of §1448, the General Assembly inadvertently struck the language of
§1448(e)(2) and then enacted the bin.47

Although a violation of §1448(e)(2) was a crime when the April 27, 2013
shooting and death occurred and when the Grand Jury first indicted Lewis on June 23,
2013, it was not a crime in December 2013 when the Grand Jury re-indicted Lewis and
included the new charge. The General Assembly re-enacted §1448(€)(2) on January 30,
2014, noting that it had been mistakenly repealed.48

On direct appeal, Lewis argued that the Superior Court should have dismissed the

§1448(e)(2) charge in the December 2013 re-indictment because §1448(e)(2) was

 

43Lewis v. State, 144 A.3d 1 109 (Del. 2016).

44 Superior Court Criminal Rule 61(i)(4).

45 Superior Court Docket No. 2- June 24, 2013 Indictment.

46 Superior Court Docket No. 23- December 23, 2013 Re-Indictment
47 Lewis v. State, 144 A.3d 1109, 1112 (Del. 2016).

48 Lewis v. State, 144 A.3d 1109, 1112 (Del. 2016).

repealed at the time of the re-indictment, and Lewis suffered prejudice as a result of
having the charge added so close to trial.49

Following a full, thorough and detailed analysis, the Delaware Supreme Court
held that under Delaware’s saving statute, 11 Del. C. §211(a), the State could indict Lewis
for violating §1448(e)(2) because the crime was committed before repeal of the statute.
The timing of the indictment, and the General Assembly’s mistaken repeal, did not
impact the validity of the indictment.50

As to Lewis’ claim that the re-indictment should not have been allowed so close
to the trial date, the Superior Court held that there was no reason to prevent it. The more
serious felony was closely related to the original charges and the re-indictment did not
come as a surprise to defense counsel.51 The Superior Court held that there was not any
good faith basis for defense counsel to oppose the re-indictment nor to request a trial

52

continuance While the re-indictment was to Lewis’ disadvantage, it was not unfairly

prejudicial.53 Moreover, the Delaware Supreme Court, in affirming the decision of` the
Superior Court, further held that the Grand Jury’s indictment two weeks before trial was
not plain error, Lewis was properly re-indicted and convicted under §1448(e)(2).54

Trial counsel cannot be deemed ineffective for failing to contest the re-indictment,

because the Superior Court already held, and the Delaware Supreme Court already

affirmed, that the re-indictment was valid. Moreover, the Superior Court already held

 

49 Lewis v. State, 144 A.3d 1109, 1112 (Del. 2016).

50 Lewis v. State, 144 A.3d 1109, 1115 (Del. 2016).

51 State v. Lewis, 2014 WL 3706551, at *2 (Del.Super.).
52 Id'

53 Id

54 Lewis v. State, 144 A.3d 1109, 1115 (Del. 2016).

10

that defense counsel did not have a good faith basis to oppose the re-indictment or to
request a continuance. This claim is without merit.
wl ll: Failu re to chuest a Selt`-Defense Instructiol_i on the PFBPP-NCD Charge

In Lewis’ pro se Rule 61 submission, Lewis claims that trial counsel was
ineffective for failing to request a self-defense instruction on the charge of PFBPP-NCD.

On direct appeal, the Delaware Supreme Court held that the Superior Court
properly declined to give a self-defense instruction on the PFBPP-NCD charge as there
was no basis under the factual record and relevant law to give this instruction on this
charge.55 Trial counsel cannot be deemed ineffective in failing to request a self-defense
instruction on the PFBPP-NCD charge, when there was no basis to request that this
instruction be given. This claim is without merit.

Claim III: Superior Cogrt Abused its Di_sg'etion in Sentencing Lewis

In Lewis’ pro se Rule 61 submission, Lewis claims that the Superior Court abused
its discretion by sentencing him with a closed mind. This claim was already raised,
considered, and rejected by the Delaware Supreme Court on direct appeal.56 This issue
having already been fully adjudicated is now procedurally barred as previously
adjudicated.57

Claim IV: Cournsel Failed to Share Discovery

Following Lewis’ initial pro se Rule 61 submission on July 26, 2017, Lewis

sought to amend his Rule 61 motion on October 11, 2017 and raise a number of

additional claims. The first additional claim that Lewis sought to raise was that trial

 

55 Lewis v. State, 144 A.3d 1109, 1117-1118 (Del. 2016).
56 Lewis v. State, 144 A.3d 1109, 1118 (De1.2016).
57 Superior Court Criminal Rule 6l(i)(4).

11

counsel failed to share discovery with him which allegedly prevented him from preparing
a defense.

A protective order was issued by the Superior Court on August 26, 2013.58 Under
the terms of the protective order, trial counsel was prohibited from disclosing any
identifying information of any third party to Lewis, Lewis’ family or associates, without
leave of the Court.59 Trial counsel was also prohibited from using the identifying
information to contact or attempt to contact the witnesses directly or indirectly without
leave of the Court.60 Thus, trial counsel Was prohibited from providing discovery to
Lewis.

The protective order was only recently modified, on April 6, 2018, to permit

Lewis access to discovery.61

Once the protective order was modified, counsel provided
Lewis with a copy of his complete discovery with victim/witness addresses, telephone
numbers and places of employment redacted.

Prior to sentencing, Lewis filed a complaint with the Office of Disciplinary
Counsel (“ODC”) against trial counsel for failing to provide him with witness statements.
ODC summarily dismissed the complaint after trial counsel responded noting that there
was a protective order in place which prevented him from doing so.62

Even if trial counsel had been permitted to provide discovery to Lewis, he was

under no legal obligation to do so. There is no obligation of counsel to provide material

given in discovery to the defendant While it is good practice, there is no constitutional

 

58 Superior Court Docket No. 12.

59 Id_

60 Id

61 Superior Court Docket No. 99.

62 See, Appendix to Rule 61 Counsel’s Motion to Withdraw, at A173.

12

requirement to do so.63

Moreover, now that Lewis has been provided with the complete
discovery provided to counsel, he has not identified any information contained in the
discovery that he was previously unaware of that would have aided in his defense.

Lewis has failed to establish that his trial counsel was deficient or that he suffered
actual prejudice as a result thereof. This claim is without merit.

Count V: Trial Cognsel Failed to File Certain Motions

Lewis claims that trial counsel was ineffective by failing to file motions to
suppress the gun, for a proof positive hearing and for an evidentiary hearing.

An ineffective assistance of counsel claim based on the failure to file a motion is
without merit if trial counsel lacked a legal or factual basis to do so.64

Lewis has not explained what the purpose of an evidentiary hearing would have
been, why one was needed or what issues would have been addressed during it.
Conclusory, unsupported and unsubstantiated allegations are insufficient to establish a
claim of ineffective assistance of counsel.65 Lewis has not substantiated his claim that
there was any good faith basis to request an evidentiary hearing.

As to the allegation that trial counsel should have requested a proof positive
hearing, again, Lewis does not substantiate his claim as to why there was any good faith
basis to request such a hearing. This unsupported allegation is insufficient to establish an

ineffective assistance of counsel claim.

 

55 State v. Winn, 2004 WL 3030023, *2 (Del.Super.), ajirmed, 2005 WL 3357513 (Del.); State v.
Robinson, 2012 WL 1415645, *3 (Del.Super.), affirmed, 2012 WL 4162948 (Del.).

54 State v. Exum, 2002 WL 100576, *2 (Del.Super.), ajj‘l`rmed, 2002 WL 2017230, *l (Del.); McAllister v.
State, 2010 WL 3398949, *2 (Del.).

65 Younger v. State, 580 A.2d 552, 556 (Del. 1990); State v. Brown, 2004 WL 74506, *2 (Del.Super.
2004)(conclusory and unsubstantiated allegations of unprofessional conduct are insufficient to support a
motion for postconviction relief).

13

As to the allegation that trial counsel should have filed a motion to suppress the
gun, there does not appear to be any good faith basis for the filing of such a motion and
no reason to believe that any such motion would have been successful. The evidence was
overwhelming that Lewis was the individual who hid the gun. A witness observed Lewis
hiding the gun and his DNA was found on the gun. Lewis’ DNA was also found on the
blood on the gun, the outdoor grill where the gun was hidden, and the blood trail leading
from the shooting to the grill.

Lewis contends that because the homeowner touched the gun before giving it to
law enforcement, this somehow tainted the chain of custody, providing a basis for trial
counsel to seek suppression of the firearm. The record indicates that the homeowner, a
private citizen, merely wrapped the gun in a towel and notified a police officer
canvassing the area that he had found the gun.66 There is no indication that this impacted
the chain of custody. lt also did not impact the overwhelming evidence that Lewis was
the individual who hid the gun.

Moreover, Lewis does not allege that the police or other persons acting on behalf
of the State did anything improper. Suppression issues only arise from allegations of
improprieties stemming from governmental conduct not from the conduct of private
citizens acting on their own accord.

There does not appear to be any basis for the filing of a motion to suppress the
gun and no reason to believe that any such motion would have been successful Lewis
has failed to establish that counsel’s decision not to file a suppression motion was

deficient in any respect or that he suffered any prejudice as a result thereof.

 

66 Rule 61 counsel’s appendix to Motion to Withdraw, at A15; January 8, 2014 Trial Transcript, at pgs.
178-180.

14

Lewis’ claim that counsel was ineffective for failing to file the aforementioned

motions is without merit.
wm VI: Trial Col_lMel Failed to Move for a Mistrial

Lewis contends that trial counsel should have filed a motion for a mistrial or
requested permission to question jurors after members of the jury impermissibly spoke
with the chief investigating officer. However, the trial record and applicable case law
establishes that this would have been an inappropriate and unsuccessful response to the
alleged error.

On day two of the trial, several members of the jury asked the chief investigating
officer if he could find someone to unlock the jury room, because they could not access
the room.67 There was no further communication between the jurors and the officer, and
the State immediately put the issue on record.68

Lewis’ trial counsel advised the court that he had overheard the exchange and that
it did not present any problems."’9

Although Lewis contends that trial counsel was ineffective for not requesting that
the jurors be questioned about this communication, a voir dire is appropriate when the
court determines that the jury “may have been exposed during the course of trial to an

extraneous influence that raises a serious question of possible prejudice”7°, which did not

occur in this case. Lewis also contends that trial counsel was likewise ineffective for

 

67 January 8, 2014 Trial Transcript, at pgs. 3-4.

15

failing to request a mistrial, but mistrials are only granted in cases of egregious prejudice
and when there are “no meaningful and practical alternatives” to that remedy.71

The brief exchange between the jurors and officer concerning a trivial matter that
had nothing to do with the trial did not raise any serious question of possible prejudice
and was not enough to warrant a voir dire, let alone a mistrial Moreover, Lewis has not
articulated the specific allegations of prejudice which resulted by this innocuous error.

This claim is without merit. Trial counsel cannot be deemed ineffective for
failing to pursue a meritless issue.

Count VII: Trial Counsel Did Not Take Adeguate Time to Prepare Defense

Lewis was initially charged with five offenses including murder. Prior to trial, the
State agreed to drop two of the five indicted charges- murder and the related weapons
charge. Following the six-day jury trial, through trial counsel’s efforts, Lewis was
acquitted of two of the remaining three charges, Reckless Endangering First Degree and
PFDCF. Lewis was convicted of only one of the charges- PFBPP-NCD.

Lewis now asserts that trial counsel did not take adequate time to meet with him
and review materials to prepare a defense in advance of trial. However, Lewis does not
identify any way in which his defense strategy would have changed, additional
information that would have been uncovered, or how the outcome of the proceedings
would have been different if trial counsel had spent more time meeting with him prior to
trial or done something more. This claim is unsubstantiated, unsupported and

conclusory. This claim is without merit.

 

71 Dawson v. Stale, 637 A.2d 57, 62 (Del. 1994).

16

Mt Vlll: Tri_al Counsel ngled to Keep Track of and§u_bnoena a Kev Witl@§

Lewis alleges that trial counsel failed to keep track of and subpoena a key witness
on his behalf at trial. Trial counsel had the witness at issue interviewed by an
investigator from the Public Defender’s Office. This witness had been with Lewis prior
to the shooting. Trial counsel’s decision not to subpoena this witness was a strategic
decision. The witness’ statements concerning the shooting would not have been helpful
to Lewis and would have significantly undermined the defense trial strategy.

Rule 61 counsel represents that based on a review of her statements given to the
investigator that the decision not to call this witness at trial “was extremely wise.” The
decision as to whether or not to call a witness and how to examine and/or cross-examine
witnesses who are called are tactical decisions.72 Great weight and deference are given to
tactical decisions by the trial attorney. There is a strong presumption that defense
counsel’s conduct constituted sound trial strategy.75

Trial counsel was not deficient for not calling a witness at trial that would have
been detrimental to the defense trial strategy. Because this individual’s testimony would
not have been helpful to Lewis’ defense, he is unable to demonstrate ineffectiveness or
resulting prejudice from counsel’s decision not to subpoena her. This claim is without
merit.

wit lX: Trial Coul_lsel ngled to Reage_st a Continl_xance After Re-Igdictment

This claim was already addressed in Count I. Lewis alleges that trial counsel was

ineffective for failing to contest the re-indictment issued two weeks before trial in order

to familiarize himself with the §1448(e)(2) charge.

 

72 Out[en v. Sl‘ale, 720 A.2d 547, 557 (Del. 1998).
75 Strickland v. Washingtorz, 466 U.S. 668, 689 (1984); Harrington v. Richter, 131 S.Ct. 770 (2011).

17

The Superior Court already addressed this issue. “As to Defendant’s questioning
why the re-indictment was allowed, the answer is that there was no reason to prevent it.
The more serious felony was closely related to the original charges and the re-indictment
did not come as a surprise to defense counsel. The court does not see that there was a
good basis for defense counsel to oppose the re-indictment, nor to request a trial
continuance.”74

The Superior Court already held that there was no good-faith basis for trial
counsel to request a trial continuance as a result of the re-indictment. Trial counsel
cannot be deemed ineffective for not requesting a continuance when there was no good
faith basis to do so. This claim is without merit.

Count X: Trial Counsel Faile(_l to Make Obiections Dl@g Trial

Lewis alleges that trial counsel was ineffective by failing to make objections
during trial when he should have. Lewis has identified only one instance in which trial
counsel should have objected but did not.

The one instance cited by Lewis is when the State’s witness made statements
about a fight she was not at and about retrieving property from a residence she was not at.
Lewis does not identify this witness, but from the trial transcripts, it appears that Lewis is
referring to Ms. Jocelyn Morales’ testimony that she witnessed a friend of her family and
a friend of Lewis get into a fight the night before the shooting at which Lewis was also
present.75

Contrary to Lewis’ representation in his Rule 61 motion, trial counsel did object

to Ms. Morales’ testimony on the belief that she was not present during the fight and was

 

74 State v. Lewis, 2014 WL 3706551, *2 (Del.Super.).
75 January 8, 2014 Trial Transcript, at pgs. 15-20.

18

simply repeating what she had heard from others.76 However, trial counsel’s objection
was overruled because Ms. Morales testified that she was, in fact, present during the
fight.77

Throughout the trial, trial counsel made numerous objections where it was
appropriate to do so. Lewis has not identified any other instance in which trial counsel
should have objected, but did not. Lewis has not explained how he was prejudiced by
trial counsel’s failure to make more objections during trial. Lewis has not alleged with
specificity the errors made by trial counsel nor has he established actual prejudice as a
result thereof. Conclusory, unsupported and unsubstantiated claims are insufficient to
support a claim for ineffective assistance of counsel. This claim is without merit.

Count XI: The State Coml_n_ittecl Prosecutoriz_\l Misconduct

Lewis alleges that the State committed prosecutorial misconduct by making
frequent assertions that could not be substantiated and which misled jurors.

ln accordance with the procedural mandates, Lewis was required to raise his
claims, with the exception of his ineffective assistance of counsel contentions, in the trial
court and/or on direct appeal.78 Rule 61(i)(3) bars as procedurally defaulted any claim
that was not asserted in proceedings leading to the judgment of conviction unless, under
Rule 61(i)(5), the claim asserts that the Court lacked jurisdiction, pleads with particularity
that new evidence exists that creates a strong inference of actual innocence, or a new rule
of constitutional law, retroactively applied to the movant’s case, renders the conviction

invalid.79 This is a claim of prosecutorial misconduct, not ineffective assistance of

 

76 January 8, 2014 Trial Transcript, at pg. 17.
77 Id_

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

79 Super.Ct.Crim.R. 61(i)(3) & 61(i)(5).

19

counsel, and it could have been raised in the trial court or on direct appeal. As there is no
new evidence creating a strong inference of actual innocence nor a new rule of
constitutional law retroactively applied which would render his conviction invalid, the
procedurally bar remains in place. Thus, this claim is procedurally barred for Lewis’
failure to raise this claim in the trial court and/or on direct appeal.80

Even if this claim was considered on its merits, it would be unsuccessful Lewis
contends that prosecutorial misconduct occurred due to: 1) the State’s failure to connect
the bullets removed from Mr. Morgan to the gun in the State’s custody; and 2) the
prosecutor having the medical examiner stand over her firing a hypothetical gun as she
lay on the floor to demonstrate how Mr. Morgan may have been shot.

Prosecutorial misconduct is evaluated under a three-part test: 1) the closeness of
the case; 2) the centrality of the issues affected by the error; and 3) the steps taken to
mitigate the effects of the error.81 Improper prosecutorial conduct rises to the level of
constitutional error when the impact of the misconduct is to distract the trier of fact and
thus raise doubts as to the fairness of the trial.82 ln the subject action, however, Lewis
has not even established that the State’s conduct was impermissible, let alone that such
conduct was so egregious as to raise doubts as to the fairness of the trial.

As to the recovered bullets not matching the gun, the firearms expert testified that
he could say with a reasonable degree of scientific certainty that the four 9-millimeter
cartridge cases recovered from the scene of the shooting were fired from the 9-millimeter

handgun in the State’s possession.83

 

80 Super.Ct.Crim.R. 61(i)(3).

81 Huntel‘ v. State, 815 A.2d 73(), 737 (Del. 2002).
82 Id. at 737-738.

85 January 9, 2014 Trial Transcript, at pgs. 79-82.

20

As to the bullets removed from Mr. Morgan, the expert testified on direct
examination that one of the bullets removed was “gouged, distorted, deformed” and that
99% of the jacket had peeled off. lt hit something really hard during its travel that caused
the jacket to come off.84 Because of this, it was impossible to determine the caliber of the
bullet let alone whether it was fired from the recovered 9-millimeter gun.85

Regarding the second bullet removed from Mr. Morgan, the expert testified on
direct examination that although he could determine that the caliber was a 9-milllimeter,
his results were inconclusive as to whether it was fired from the 9-millimeter gun in the
State’s possession.86

Trial counsel conducted a thorough cross-examination of the firearms expert
emphasizing that some of the bullets could not even be matched with each other, let alone
with any one firearm.87

On redirect examination, the State emphasized that the four cartridge cases could
be determined as having been fired from the 9-millimeter gun recovered and that all of
the 9-millimeter and .38 class bullets could have been fired by a 9-millimeter firearm.88
lt just could not be determined whether they were fired from the particular 9-millimeter
gun in the State’s possession.89

During closing arguments, the State noted that the 9-millimeter bullet removed

from Mr. Morgan’s leg “is the same caliber bullet that is used in the gun that had the

 

84 January 9, 2014 Trial Transcript, at pgs. 83-86.

85 [d

86 January 9, 2014 Trial Transcript, at pgs. 87-90.

87 January 9, 2014 Trial Transcript, at pgs. 97-119.
88 January 9, 2014 Trial Transcript, at pgs. 120-122.
89 January 9, 2014 Trial Transcript, at pgs. 122.

21

defendant’s DNA on it.”99 The State also noted that the .38 class bullets could have been
fired from a 9-millimeter gun.91

There is nothing inaccurate in the comments made by the State during direct and
cross-examination of the firearms expert and during closing arguments. The State never
asserted that the recovered 9-millimeter bullets were shot from the specific 9-millimeter
handgun that was recovered, only that they could have been. The State’s comments were
not impermissible, inappropriate or inaccurate, let alone egregious enough to raise doubts
as to the fairness of the trial.

Similarly, the prosecutor’s demonstration with the medical examiner does not
amount to prosecutorial misconduct. On direct examination, the medical examiner
testified that the gunshot wound to Mr. Morgan’s leg traveled “steeply upward in the left
thigh.”92 ln response to the State’s questioning, the medical examiner testified that he
could not tell at what distance Mr. Morgan was shot, but that based upon the steep
upward trajectory, if Mr. Morgan was laying on the ground, the shooter would have to be
by Mr. Morgan’s feet with the gun toward Mr. Morgan’s foot and directed toward his
head.95 Following this testimony, the prosecutor had the medical examiner demonstrate
for the jury the explanation he had just given.94

On cross-examination, trial counsel emphasized that the medical examiner was
unable to determine which wound Mr. Morgan received first and that the demonstration

with the prosecutor was merely a hypothetical and only one possible scenario.95 The

 

90 January 13, 2014 Trial Transcript, at pg. 22.
91 January 13, 2014 Trial Transcript, at pg. 23.
92 January 8, 2014 Trial Transcript, at pgs. 118-119.
93 January 8, 2014 Trial Transcript, at pgs. 121-122.
94 January 8, 2014 Trial Transcript, at pgs. 122-123.
95 January 8, 2014 Trial Transcript, at pgs. 127-134.

22

medical examiner testified that there are “absolutely” other possible scenarios in which
the same trajectory could be achieved and that he could not say with scientific certainty
that the State’s hypothetical is what actually occurred.96 He testified that he Fwas only
responding to the specific question asked by the State.97

Based upon the entirety of the medical examiner’s testimony, the State’s
demonstration was not misleading The jury heard the medical examiner’s follow-up
explanation that it was only a hypothetical and that many other scenarios could also have
resulted in the same trajectory. There was nothing improper about the State using a
demonstrative tactic to explain the medical examiner’s findings, and trial counsel made it
clear on cross-examination that this was no more than one of many hypothetical
explanations for what had occurred. The prosecutor did not engage in any inappropriate
conduct let alone conduct egregious enough to raise doubts as to the fairness of the trial.

This claim is procedurally barred and without merit.

Count XII: The State’s Case Was Premise(l On an Improper Theorv

Although it is hard to discern, it appears that Lewis is claiming that the State
committed prosecutorial misconduct based upon its theory of the case as argued at trial.
This claim of prosecutorial misconduct would be barred under Rule 61(i)(3), as
procedurally precluded for failure to raise it on direct appeal.

This claim is also without merit. A review of the record does not reveal any
action by the State that would constitute prosecutorial misconduct in presenting its theory

of the case at trial.

 

96 January 8, 2014 Trial Transcript, at pg. 133.
97 January 8, 2014 Trial Transcript, at pg. 133.

23

The State proceeded to trial on three charges: PFBPP-NCD, PFDCF and
Reckless Endangering First Degree. The State had dismissed the murder charge and
related weapons charge prior to trial.

Lewis seems to contend that the State’s theory of the case was that Lewis shot Mr.
Morgan in retaliation for a prior dispute that occurred between mutual acquaintances, and
because the State had dismissed the murder charge, it was somehow improper to pursue
this theory at trial. Lewis appears to contend that the State argued that Lewis had
intentionally armed himself with a firearm so that he could go find, shoot and kill Mr.
Morgan. The record, however, reflects otherwise.

The record reflects that the State’s argument was that Lewis went to confront a
group of individuals, who happened to include Mr. Morgan, to discuss a prior dispute
involving an acquaintance, while armed with a gun, and that this confrontation escalated
into a gun battle which resulted in Mr. Morgan’s death.98 During closing statements, the
State argued that Lewis’ conduct started a gun battle which in turn resulted in the death of
Mr. Morgan.99

The record reflects that the State was focusing on proving negligence, not
intentional conduct, and arguing to the jury that Lewis’ careless actions, regardless of
intent, caused the death of Mr. Morgan.

This claim of any prosecutorial misconduct is procedurally barred and without

merit.

 

98 January 7, 2014 Trial Transcript, at pgs. 4-26.
99 January 13, 2014 Trial Transcript, at pgs. 18-19.

24

CONCLUSION

Lewis has failed to establish that his trial counsel was deficient in any regard or
that he suffered actual prejudice as a result thereof. The court has reviewed the record
carefully and has concluded that Lewis’ Rule 61 motion is without merit and devoid of
any other substantial claims for relief, The court is also satisfied that Lewis’ Rule 61
counsel made a conscientious effort to examine the record and the law and has properly
determined that Lewis does not have a meritorious claim to be raised in his Rule 61
motion.

For all of the foregoing reasons, Lewis’ Motion for Postconviction Relief should

be denied and Rule 61 counsel’s motion to withdraw should be granted.

IT IS SO RECOMMENDED.

 

 

Comrliissioner Lynne M. Parker

oc: Prothonotary
cc: Joseph M. Leager, Jr., Esquire
Mr. Kahlil D. Lewis (SBI# 00629845)

25

