           IN THE SUPREME COURT OF THE STATE OF DELAWARE

JAMAIEN MONROE,                            §
                                           §      No. 340, 2014
      Defendant Below,                     §
      Appellant,                           §      Court Below:
                                           §
      v.                                   §      Superior Court of the
                                           §      State of Delaware, in and for
STATE OF DELAWARE,                         §      New Castle County
                                           §
      Plaintiff Below,                     §      Cr. I.D. No. 0601021343A
      Appellee.                            §

                           Submitted: February 11, 2015
                             Decided: March 25, 2015

Before STRINE Chief Justice, HOLLAND, and VALIHURA, Justices.

                                     ORDER

      This 25th day of March 2015, upon consideration of the parties’ briefs and

the record below, it appears to the Court that:

      (1)    Defendant-below, Jamaien Monroe (“Monroe”), raises three claims on

appeal. He argues that the Superior Court erred when it held that his trial counsel

was not ineffective for: (1) failing to renew the motion to exclude testimony, sever

charges, and exclude evidence concerning an uncharged robbery; (2) failing to

request a mistrial when a key State’s witness ceased testifying and asserted his

Fifth Amendment right against self-incrimination; and (3) failing to request a

mistrial when the jury found newly discovered evidence that was not admitted at

trial. We disagree and for the reasons stated herein, AFFIRM.
      (2)    The facts underlying the issues on appeal concern an uncharged

attempted robbery of Andre Ferrell (“Ferrell”) allegedly by Monroe, followed by

Monroe’s alleged attempted murder of Ferrell the next day, and then Ferrell’s

murder by Monroe fifteen months later.

      (3)    Ferrell, Ronald Wright (“Ronald”), Jonathan Wisher (“Jonathan”) and

Sal (last name unknown), went to the G&P Deli near 28th and Market Streets in

Wilmington. As Ferrell and Ronald walked towards the deli, they passed Monroe,

Kason Wright (“Kason”) and an unknown individual. Ferrell allegedly got into a

struggle with Monroe and Ronald during an attempt to steal Ferrell’s necklace. No

criminal charges were filed concerning this incident.

      (4)    The following day, around 12:30 p.m., Ferrell, Ronald, Tony Wisher

(“Tony”), and Sal were driving in Wilmington. After dropping off Tony and

picking up his brother Aaron Mummert (“Mummert”), Ferrell drove to the area of

23rd and Carter Streets. A green Suburban SUV was parked on the left sidewalk

of the street. Some of the occupants in Ferrell’s car saw Monroe in the backseat of

the Suburban holding a .38 caliber revolver. At this time, an individual named

“Brownie” came out into the street. Ferrell stopped to speak with Brownie. While

Ferrell and Brownie were talking, Monroe allegedly fired five or six shots towards

Ferrell’s vehicle. Ferrell was shot in the back. Ferrell drove to his grandmother’s

house, and from there, he was taken to the hospital. Warrants were issued for



                                         2
Monroe’s arrest for attempted murder, but efforts to apprehend him were

unsuccessful.

         (5)     Fifteen months later, on the evening of April 2, 2007, Ferrell, his

girlfriend, Shameka Brown (“Brown”), and his son went to the Village of Crofton

in Newark, Delaware, to pick up their daughter. While driving, Brown noticed her

co-worker, Ronise Saunders (“Saunders”), driving a later-model, boxed-shaped,

white car. After acknowledging each other, Saunders drove towards the Lexington

Green Apartments where she lived, and Ferrell continued on towards the Village of

Crofton.

         (6)     After picking up their daughter, Ferrell and Brown went to Derrs’

Market, located in the Taylor Towne Shopping Center in Newark, Delaware.1

Driving into the parking lot of the shopping center, Ferrell and Brown saw

Saunders’ car, being driven by Monroe, backing out of a parking space. Ferrell

parked his car and went into Derrs while Brown stayed in the car with the children.

Ferrell exited Derrs after about five minutes and returned to the car, standing

outside of the driver’s side with the door open, talking to Brown. At this time,

Brown saw a black male wearing a white t-shirt, blue jeans, and a partially red-

colored baseball hat, holding a gun, approach Ferrell from behind. That man shot



1
    This shopping center is located across the street from the Lexington Green Apartments.



                                                 3
Ferrell four or five times. After the shooting, the man ran towards the Lexington

Green Apartments.

      (7)    Officer Jane Paolo (“Officer Paolo”) was the first police officer to

arrive on the scene. She attempted CPR on Ferrell but confirmed that he had no

pulse. Officer Paolo took Brown and the children to her patrol vehicle. Brown

told the officer that the shooter looked like Monroe.

      (8)    A witness, Katharine Meier (“Meier”), was exiting her car at the time

of the shooting. She told police that she heard five loud bangs from the area in

front of Derrs. She saw a man backing away, and then walking quickly through

the parking lot. Meier described the man as black, medium-tall, husky, with a

pudgy face, wearing a white t-shirt, blue jeans, and a red and white baseball hat.

Two other witnesses, Kim Klosowski (“Klosowski”) and Diamonyell Bateman

(“Bateman”) were sitting outside of the Lexington Green Apartment complex at

the time of the homicide. Klosowski told police she saw a black man, wearing a

white t-shirt, blue jeans and a red baseball hat, running through the apartment

complex into the parking lot of Derrs. Approximately thirty seconds later,

Klosowski saw that same person running back through the apartment complex.

Bateman also told police that she heard gunshots and saw a black man wearing a

white t-shirt and red baseball hat run from Derrs.




                                          4
         (9)     Officer Paolo transported Brown to the police station and left her with

Detective Smith. Officer Paolo told the detective about Brown’s statement that the

shooter looked like Monroe. Brown selected Monroe as the shooter out of a

photographic lineup. Two days later, Meier also identified Monroe out of a lineup

as most likely being the man she saw in the parking lot outside of Derrs and

running towards the Lexington Green Apartments. Videotape from Derrs’ Market

showed a man who looked like Monroe in the store before Ferrell arrived.2 During

a search of Saunders’ apartment, the police found a jacket fitting the description of

the one seen in the videotape. Saunders owned a 1987 white, four-door Mercury

Marquis. This car was found abandoned in Chester, Pennsylvania, on April 10,

2007. Police could not locate Saunders before the February 2009 trial.

         (10) Prior to the trial, Monroe filed a motion in limine to exclude evidence

of the uncharged attempted robbery of Ferrell in January 2006. The trial court

denied this motion, finding that the evidence of Monroe’s role in the necklace

robbery was “plain, clear and conclusive” and could tend to show that Monroe was

involved in the robbery the day before the alleged attempted murder, and thus, had

a motive to murder Ferrell.




2
    That man was wearing a black and red jacket in the video.



                                                 5
          (11)    In April 2009, Monroe filed a motion for a new trial. This motion

was denied in May 2010.3 Monroe then filed a direct appeal to this Court. In

September 2011, we affirmed the judgment of the trial court.4 Monroe now seeks

post-conviction relief.

          (12) We review a trial court’s denial of a motion for post-conviction relief

based on a claim of ineffective assistance of counsel for an abuse of discretion.5

“[W]e carefully review the record to determine whether ‘competent evidence

supports the court’s findings of fact and whether its conclusions of law are not

erroneous.’”6 Constitutional questions and other questions of law are reviewed de

novo.7

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

must show: (1) “that counsel’s representation fell below an objective standard of

reasonableness;” and (2) “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been




3
    Monroe v. State, 2010 WL 1960123 (Del. Super. May 14, 2010).
4
    Monroe v. State, 28 A.3d 418, 422 (Del. 2011).
5
 Outten v. State, 720 A.2d 547, 551 (Del. 1998) (citing Shockley v. State, 565 A.2d 1373, 1376
(Del. 1989); Albury v. State, 551 A.2d 53, 60 (Del. 1988)).
6
    Id. (quoting Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996))
7
    Purnell v. State, 106 A.3d 337 (Del. 2014).



                                                  6
different.”8 The Strickland standard is highly demanding and there is a “strong

presumption that the representation was professionally reasonable.”9 When

evaluating trial performance under the first prong, courts make every effort to

“eliminate the distorting effects of hindsight” and “evaluate the conduct from

counsel’s perspective at the time.”10 To establish prejudice under the second

prong, a defendant must “make concrete allegations” of actual prejudice before

having a hearing on the matter and must substantiate the allegations.11 Because an

appellant must prove both Strickland prongs, “a court need not determine whether

counsel’s performance was deficient before examining the prejudice suffered by

the defendant as a result of the alleged deficiencies.”12 Instead, “[i]f it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

. . . that course should be followed.”13

           (14) We turn now to Monroe’s first claim on appeal. Monroe argues that

counsel was ineffective for failing to renew motions to exclude testimony and


8
 Strickland v. Washington, 466 U.S. 668, 694 (U.S. 1984) (“A reasonable probability is a
probability sufficient to undermine confidence in the outcome . . . In making this determination,
a court hearing an ineffectiveness claim must consider the totality of the evidence before the
judge or jury.”).
9
    Wright v. State, 671 A.2d 1353, 1356 (Del. 1995).
10
     Strickland, 466 U.S. at 689.
11
     Skinner v. State, 1994 WL 91138, at *1-2 (Del. Mar. 3, 1994).
12
     Strickland, 466 U.S. at 697.
13
     Id.



                                                 7
evidence regarding an uncharged robbery, and for failing to renew the motion to

sever the attempted murder and murder charges. He contends that Kason’s refusal

to testify should preclude the admission of the robbery evidence. Monroe filed a

motion in limine to exclude the evidence of the attempted robbery and testimony of

Jonathan, Ronald and Kason. In a videotaped out-of-court statement, Kason had

identified Monroe as the being involved in the attempted robbery of Ferrell. This

statement was introduced into evidence at the in limine hearing, pursuant to 11 Del.

C. § 3507. Jonathan and Ronald, however, did not directly identify Monroe as

being involved in the robbery during their pre-trial testimony. Based upon the

combined testimony of Jonathan, Ronald and Kason, the trial court determined that

the evidence pertaining to the uncharged attempted robbery was supported by

“plain, clear and conclusive evidence.” Accordingly, the trial court denied the

motion in limine, and ruled that the attempted robbery would be admissible as

evidence of motive during Monroe’s trial for the attempted murder and actual

murder of Ferrell.

      (15) At trial, Jonathan and Ronald testified consistently with their pretrial

testimony at the hearing on Monroe’s motion in limine. But when Kason began to

testify at trial, he suddenly ceased testifying on the stand and invoked his Fifth

Amendment rights. Since Kason did not testify to the substance of the issues, his

videotaped statement to the police was inadmissible at trial.



                                           8
         (16) Following Monroe’s conviction for Ferrell’s murder, Monroe moved

for a new trial, asserting that the jury did not hear “plain, clear and conclusive”

evidence of his prior uncharged attempted robbery, and therefore, no evidence of

that crime should have been admitted at trial. The trial court denied the motion for

a new trial, ruling that even without the testimony of Kason, the testimony of

Jonathan and Ronald was “plain, clear and conclusive” evidence of Monroe’s

motive for the attempted murder and the actual murder of Ferrell.14 On direct

appeal to this Court and after this Court’s de novo review, we held that even

without the testimony of Kason, the eyewitness testimony of Jonathan and Ronald

constituted plain, clear and conclusive circumstantial evidence of Monroe’s

attempt to rob Ferrell, and that, therefore, the evidence of the attempted robbery

was properly admitted at trial.15

         (17) Monroe now argues that trial counsel was ineffective because counsel

should have cross-examined Kason after he invoked his Fifth Amendment rights

and refused to testify. Monroe contends that because trial counsel failed in this

regard, the Superior Court denied his motion for a new trial. Additionally, Monroe

argues that when Kason failed to testify, his trial counsel should have immediately



14
     Monroe, 28 A.3d at 422.
15
  Id., at 430-31. Monroe was found not guilty of any of the charges stemming from the January
26, 2006 shooting of Ferrell.



                                              9
requested a mistrial or moved to have the testimony from Jonathan and Ronald

excluded.

         (18) Before considering the merits of Monroe’s claim under Strickland, we

must determine whether Monroe’s claim is procedurally barred. This Court, on

Monroe’s direct appeal from a denial of a motion for a new trial, found that “the

record supports the Superior Court’s finding that [Jonathan] Wisher and Ronald

Wright’s eyewitness testimony constituted plain, clear, and conclusive

circumstantial evidence of Monroe’s attempt to rob Ferrell.”16 Because the

ineffective assistance of counsel claim and his motion for a new trial are premised

upon the same underlying issue, namely, whether the past bad act evidence was

properly admitted, we agree with the Superior Court that Monroe’s current claim

is, in effect, a restated version of his motion for a new trial, which was heard and

decided by this Court on direct appeal.17 Thus, the claim is procedurally barred.


16
     Monroe, 28 A.3d at 431 (emphasis added).
17
   As the Commissioner noted in her Report and Recommendation, the renewal of these motions
would not have been effective because the Superior Court, and later this Court, held that the
attempted robbery testimony from Jonathan and Ronald was properly admitted. State v. Monroe,
2014 WL 934446, at *6-7 (Del. Super. Mar. 6, 2014). As for the motion to sever, we held, in
ruling on Monroe’s direct appeal, that the trial court did not abuse its discretion in denying
Monroe’s motion to sever the January 2006 attempted murder charge and the April 2007 first
degree murder charge. We concluded that the attempted murder evidence was highly probative
of the State’s murder case and was not unfairly prejudicial to Monroe. Further, we noted that the
jury was properly instructed on how to evaluate evidence of other crimes. As to this claim also,
the Superior Court did not abuse its discretion when it held that Monroe’s first claim was
procedurally barred under Superior Court Criminal Rule 61(i)(4), and even if the claim were not
barred, it is without merit.



                                                10
      (19) Even if Monroe’s claims were not procedurally barred, Monroe

cannot satisfy the Strickland test. Monroe’s counsel employed a trial strategy

regarding the robbery evidence that, albeit unsuccessful, was within the zone of

reasonableness. Additionally, Monroe cannot show that there is a reasonable

probability that the proceeding would have turned out differently if his counsel had

renewed the motions regarding the uncharged robbery. Because this Court has

found that the evidence was properly admitted, Monroe cannot establish prejudice

based upon his counsel’s failure to raise and renew these motions. Accordingly,

we reject Monroe’s first claim on appeal.

      (20) As to his second claim on appeal, Monroe argues that counsel was

ineffective for failing to request a mistrial after Kason ceased testifying on the

stand and invoked his Fifth Amendment rights. Monroe contends that when Kason

ceased testifying, it was an act that showed the jury that Kason feared retaliation by

Monroe, which caused Monroe to be cast in a bad light to the jury. Monroe further

argues that because Kason invoked the Fifth Amendment, the jury would believe

that Kason was guilty of a crime. Since Monroe was with Kason at the time of the

incident, Monroe contends that the jury would conclude that he was also guilty.

Monroe also argues that a curative instruction would not have been appropriate,

and instead, his counsel should have requested a mistrial.




                                          11
         (21) The Superior Court did not abuse its discretion when rejecting this

claim because Monroe has not satisfied the prejudice prong of Strickland.

Monroe’s argument that he was prejudiced by Kason’s statements and actions on

the stand is undercut by the fact that he was acquitted of the attempted murder

charges. Further, Monroe was never charged for the attempted robbery of Ferrell.

In Dawson v. State, we held that a showing of prejudice cannot be based on an

appellant’s conclusory statements, and that failure to state with particularity the

nature of the prejudice experienced is fatal to a claim of ineffective assistance of

counsel.18 The Superior Court did not abuse its discretion when it rejected

Monroe’s second claim because Monroe had not satisfied the prejudice prong of

the Strickland test. Accordingly, we need not consider the first prong of the

Strickland test.

         (22) As for his third claim on appeal, Monroe argues that counsel was

ineffective for failing to request a mistrial when the jury found newly discovered

evidence that was not admitted during trial. At trial, the jacket found in Saunders’

apartment was entered into evidence. During jury deliberations, after evidence had

been closed, a juror found a store receipt in the pocket of the jacket. The receipt

was for auto repairs at a Pep Boys shop with the name “Jamar Dawson” on it. The

receipt was dated the day before the shooting. Monroe argues that the jury could
18
     Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996).



                                                12
have considered the name on the receipt and concluded that he was using a fake

name to avoid arrest by the police, or the jury could have concluded that the name

on the receipt meant that someone other than Monroe was the shooter. Monroe

argues that this evidence would have persuaded the jury that he was not the

shooter, and thus, counsel was ineffective for failing to request a new trial in which

this evidence could be presented.

           (23) Trial counsel made a strategic decision to request a curative

instruction rather than move for a mistrial. They acknowledged in their affidavit

that the discovery of the receipt was “problematic” but opted to recommend to the

court that the jury continue with deliberations because “the jury had been

deliberating for quite a while, and [they] thought from [their] observation that the

jury was receptive to the defense case.”19 The trial court also noted that counsel

had raised the concern that “that there was no evidentiary foundation laid for those

items, no opportunity for cross-examination about them, no opportunity for

argument in closing argument by defense counsel as to the significance, if any, of

those items. They shouldn’t have been before the jury.”20 Before admonishing the

jury not to consider the evidence, the court stated that “[j]uries are, as [trial

counsel] said, frequently instructed to disregard testimony, or items admitted into

19
     State v. Monroe, 2014 WL 2581971, at *6 (Del. Super. Jun. 6, 2014).
20
     Id.



                                                13
evidence sometimes or inadvertently shown to the jury before they were admitted,

and they regularly are instructed to disregard certain testimony and sometimes

exhibits that do come to their attention.” Ultimately, the jury was told to disregard

the evidence and “[j]uries are presumed to follow the trial judge’s instructions.”21

Given the various ways the receipt could have been interpreted, trial counsel made

a strategic decision which satisfies the test for competent representation set forth in

Strickland. Trial counsel’s decision to not request a mistrial falls within the wide

range of reasonable conduct afforded to counsel under Strickland.

          (24) Nor can Monroe establish prejudice. Having advanced a claim of

ineffective assistance of counsel, Monroe had to put forth a rational argument that

his counsel had reason to believe a new trial was warranted because, for example,

Monroe gave them a basis to fairly argue that the jacket in evidence was not his or

had been worn by someone else, and the failure to request a mistrial thus negated

Monroe’s chance for a fair trial at which he could claim that “Jamar Dawson” was

the shooter. Instead, Monroe merely acknowledges that the new evidence “could

have been extremely harmful or extremely beneficial.” Strickland requires more

than mere possibility of prejudice; a petitioner in a Rule 61 motion alleging

ineffective assistance of counsel “must make specific allegations of actual



21
     Revel v. State, 956 A.2d 23, 27 (Del. 2008).



                                                    14
prejudice and substantiate them.”22 Because Monroe has not provided any basis

for us to believe that he gave his counsel any rational basis to argue that the jacket

in evidence was not his or had been worn by someone else -- nor does he claim on

appeal that the jacket was not in fact his or was worn by someone else -- Monroe’s

claim fails under Strickland’s second prong. Accordingly, we find no merit in

Monroe’s third claim on appeal.

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

Superior Court be, and the same hereby is, AFFIRMED.

                                                   BY THE COURT:


                                                   /s/ Karen L. Valihura
                                                   Justice




22
  Wright, 671 A.2d at 1356; see also Dawson, 673 A.2d at 1196 (requiring that prejudice under
the Strickland test be shown with support and explanation).



                                              15
