IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE
V. I.D. # 1404011405

WILLIAM D. ANDERSON,

\/\/\/\'/V\/V

Defendant.

Date Submitted: October 14, 2016
Date Decided: January 13 , 2017

Upon Defendant’s Motion for Post-Conviction Relief: DENIED

This 12th day of January, 2017, upon consideration of Defendant’s Motion
for Post-Conviction Relief (the “Motion”) under Superior Court Criminal Rule 61
(“Rule 61”), the submissions of counsel, and the record in this case, it appears to
the Court that:
FACTUAL ANI) PROCEDURAL BACKGROUND
1. In April 2014, Defendant Williarn Anderson Was involved in an
altercation With Gary Staffieri, Who Was Anderson’s coworker at the Auto Mart in
Elsmere, Delaware. Anderson Was indicted on June 23, 2014 on a charge of
Assault Second Degree under 11 Del. C. § 612(a)(6), Which provides: “A person is
guilty of assault in the second degree When: . . . (6) [t]he person . . . intentionally
causes physical injury to another person Who is 62 years of age or older.” Staffieri

Was 67 at the time of the altercation.

2. Anderson’s case proceeded to trial in January 2015, where he was
represented by Timothy J. Weiler, Esq. (hereinafter, “Trial Counsel”). At trial, the
State presented the testimony of Staftieri, who testified Anderson approached him
while Staffieri was retrieving a battery from a back room and the next thing
Staffieri remembered was waking up outside with a lump on his head. Another co-
worker, Ricardo Reyes, testified that he witnessed the incident between Anderson
and Staffieri, that Staffieri Struck Anderson with his knee, and that Anderson then
pushed and struck Staffieri. Reyes left the scene to get a supervisor and, when he
returned, saw Staffieri having seizures, shaking, and with a large lump on his head.
Finally, Elsmere Police Officer Andrew Davis testified that he interviewed
Staffieri while he was receiving treatment at the hospital and that Staffieri reported
that Anderson Struck him in the head.

3. In his defense, Anderson called the owner of Auto Mart, Allan Bobb,
who testified that Staffieri’s demeanor was unusual on the day of the incident and
that Staffieri admitted to drinking alcohol that moming. Anderson also testified in
his own defense. He admitted to striking Staffieri, but Stated he only did so
because Staffieri kneed him in the abdomen. After Anderson testified that he
“would never try to injure someone like that,” the Court permitted the State to

introduce evidence of Anderson’S prior convictions for Assault Third Degree and

Offensive Touching. At no time before the jury retired to deliberate did Trial
Counsel move for a judgment of acquittal.

4. During closing arguments, the prosecutor told the jury that “the State
believes that we’ve proven each and every element of [the] charge to you beyond a
reasonable doubt.” Trial Counsel did not object to that statement. After receiving
instructions and deliberating, the jury returned a guilty verdict.

5. On February 20, 2015, after trial but before sentencing, the trial judge
received a letter from a juror, who stated she felt “very unsettled about the ‘guilty’
verdict.”l The juror indicated she “felt Mr. Staffieri was equally, if not MORE at
fault since he had been drinking that morning and is the one who offered the first
‘knee to the groin.’. . . [l]t felt terribly wrong pinning the charge solely on Mr.
Anderson.”2 The juror continued:

During deliberations, there were 3 points in the packet of information

that I sensed corralled us into a guilty verdict, and regardless of what

the ‘law’ states, that was unjust, to say the least. Again, I felt they

were both at fault.

Having said all of that, l hope that justice is served equally somehow,

and that Mr. Anderson does not receive the full weight of what should
be appropriated to both men in this case.3

The trial judge forwarded the letter to the parties upon receipt.

 

1 D.i. 46, EX. B.
2 Id. (emphasis in original).
3 ld. (emphasis in original).

6. Af`ter the jury returned its verdict, the Court ordered a pre-sentence
investigation Anderson did not participate in his interview with the pre-sentence
office, although that office attempted to contact him several times. At sentencing
on May 29, 2015, the Court received comments from the State and from Trial
Counsel. Anderson relied on Trial Counsel’s statements and did not offer his own
remarks. The Court sentenced Anderson to eight years at Level V, suspended after
three years for decreasing levels of supervision.

7. Anderson took a direct appeal to the Delaware Supreme Court with
the assistance of Michael l\/lodica, Esq. (“Appellate Counsel”). Appellate Counsel
raised five issues on appeal: (1) the evidence was not sufficient to support a
conviction; (2) this Court erred in admitting evidence of Anderson’s prior
convictions; (3) this Court erred by failing, sua sponte, to give a jury instruction
regarding “Character of the Accused”; (4) the State committed prosecutorial
misconduct during closing arguments; and (5) this Court denied Anderson his right
to allocution during sentencing. The Delaware Supreme Court rejected each such
claim of error and affirmed the decision below.4

8. Anderson filed this Motion on July 25, 2016, raising six grounds for
post-conviction relief, including five claims of ineffective assistance of counsel

and one claim of judicial abuse of discretion. As to the claims of ineffective

 

4 Anderson v. State, 2016 WL 618840 (Del. Feb. 15, 2016).
4

assistance, Anderson alleges Trial Counsel was ineffective by failing to: (1) object
to the prosecutor’s statements, highlight inconsistent testimony, and move for
judgment of acquittal; (2) communicate effectively with Anderson; (3) keep
Anderson apprised about his PSI and sentencing; (4) cross-examine Staffieri
effectively; and (5) properly advise Anderson regarding the advisability of a plea
bargain.5 As to his claim of judicial abuse of discretion, Anderson alleges the
Court erred by failing to take appropriate action after receiving the juror letter
referenced above. By order dated August 15, 2016, the Court ordered Trial
_ Counsel to respond to the Motion by affidavit and further ordered the State to
respond after Trial Counsel’s affidavit was filed. Finally, the Court granted
Anderson time to respond to the submissions by Trial Counsel and the State.
Anderson filed his response on October 14, 2016.

ANALYSIS

A. Procedural bars to Anderson’s claims
9. Before addressing the merits of any claim for post-conviction relief,
this Court first must determine whether the motion procedurally is barred under
Rule 61.6 A motion for post-conviction relief is barred if it is untimely, repetitive,

or procedurally improper, or if it formerly was adjudicated7

 

5 D.i. 42 at 2-4.
6 See Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554
$Del. 1990).

Bm`le , 588 A.2d at 1127.

10. Notwithstanding those bars, this Court may consider a motion that
otherwise is barred if the motion is based on claims that the Court lacked
jurisdiction or the motion satisfies the pleading requirements set forth in Rule
61(d)(2).8 Rule 61(d)(2) requires that a movant plead with particularity that (i)
new evidence exists that creates a strong inference that the movant actually is
innocent in fact of the acts underlying the charges of which he was convicted; or
(ii) a new rule of constitutional law, made retroactive to cases on collateral review
by the United States Supreme Court or the Delaware Supreme Court, applies to the
movant’s case and renders the conviction or death sentence invalid.

11. Arguably, Anderson’s claim of judicial abuse of discretion is barred
by Rule 61(i)(3). Under the unusual circumstances explained below, however, the
Court nonetheless has addressed the merits of that claim. Anderson’s remaining
claims of ineffective assistance of counsel could not be raised at trial or on direct
appeal from his conviction.9 Anderson timely filed the Motion, it is his first such
motion under Rule 61, and the Court therefore properly may consider the merits of
his claims.

B. Anderson’s claim of judicial abuse of discretion
12. In support of his claim of “judicial closed mindedness/abuse of

discretion,” Anderson alleges “[Trial Counsel] was made aware of the fact that the

 

8 Rule 61(1)(5).
9 State v. Evcm-Mayes, 2016 WL 4502303, at *2 (Del. Super. Aug. 25, 2016).

6

Court did receive correspondence from a juror, intimating that she and quite
possibly other members of the jury[] felt as though Mr. Staffieri was not
completely blameless in this incident. However, she felt pressured by the jury
instructions to reject the ruling of self-defense.”10

13. Arguably, this claim procedurally is barred under Rule 6l(i)(3)
because it could have been raised in Anderson’s direct appeal. Although the trial
judge undoubtedly advised the parties of the letter, as both Anderson and Trial
Counsel acknowledge, the letter does not appear on the docket. It therefore is
possible, without knowing more, that Appellate Counsel was not aware of the letter
when he was preparing the appeal. For that reason, the Court will address the
merits of Anderson’s claim.

14. Anderson does not explain how this letter, or the Court’s response to
it, amounts to an abuse of discretion.ll He does not elaborate on what further
action the Court should have taken in response to the letter, The letter indicates the
juror was troubled by the verdict she felt compelled to reach as a result of the

Court’s instructions, but Anderson has not identified any error in the Court’s

instructions regarding self-defense or victim involvement, nor did Appellate

 

10 D.I. 42 ar 3.

ll In his reply, D.l. 49 at 4, Anderson suggests that his argument regarding the jury note relates
not to judicial abuse of discretion, but rather to Trial Counsel’s failure to “ask more questions
about [Staffieri’s] drinking [which] would have shown a different story and could have shown
that Mr. Staffieri was the aggressor.” To the extent this claim in the Motion is one for ineffective
assistance, it is addressed below in connection with Anderson’s fourth claim of ineffective
assistance: lack of proper cross examination

Counsel identify any such error in the jury instructions Accordingly, Anderson
has not shown that any judicial abuse of discretion occurred, let alone an abuse of
discretion that affected the verdict or Anderson’s sentence.
C. Anderson’s claims of ineffective assistance of counsel

15. The majority of Anderson’s claims relate to alleged ineffective
assistance by Trial Counsel. To prevail on a claim for ineffective assistance of
counsel, a defendant must establish both that counsel’s representation fell below an
objective standard of reasonableness and that there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have been different.12
There is a strong presumption that counsel’s representation was reasonable.13
Accordingly, a defendant must make specific allegations of actual prejudice and
substantiate them; vague allegations or conclusory statements will not suffice.14

16. Anderson’s first claim of ineffective assistance has three sub-parts;
Anderson contends Trial Counsel failed to (a) object to the prosecutor’s statements
during summation, (b) properly emphasize inconsistencies in Officer Davis’s
testimony, and (c) move for a judgment of acquittal. As to Trial Counsel’s alleged
error in failing to object to what Anderson contends was prosecutorial misconduct,

the Delaware Supreme Court reviewed the State’s closing arguments de novo and

 

12 Srrickland v. Washing¢on, 466 U.s. 668, 687-88 (1984).
13 Wrigh¢ v. Sza¢e, 671 A.2d 1353, 1356 (Del. 1996).
14 Id. ; Monme v. Srare, 2015 WL 1407856, at *5 (Del. Mar. 25, 2015).

8

determined that no misconduct occurred.15 Trial Counsel therefore committed no
error, since there was no prosecutorial misconduct to which to object. As to Trial
Counsel’s presentation of the case to the jury, including purported inconsistencies
in Officer Davis’s testimony, Anderson neither identifies with specificity what
those inconsistencies were, nor explains how Trial Counsel failed to capitalize on
them. In his affidavit in response to the Motion, Trial Counsel contends his
decisions were strategic ones. Trial Counsel’s strategic decisions regarding how to
cross-examine witnesses and how to argue the case to the jury are entitled to a
strong degree of deference, which cannot be overcome with vague references to
Trial Counsel’s failure to do one or both of those things effectively.16 Finally, with
respect to Trial Counsel’s failure to move for judgment of acquittal, the Delaware
Supreme Court in resolving Anderson’s direct appeal reviewed the sufficiency of
the evidence under a plain error standard and found no error. Even under a less
deferential standard of review, the parties at trial each offered the testimony of
witnesses regarding what transpired between Anderson and Staffieri. Anderson
admitted to striking Staffieri, but contended he did so only in self-defense.
Although there was some evidence to support a self-defense theory, it was for the

jury to weigh the evidence and the credibility of the witnesses. Anderson’s

 

15 Anderson, 2016 WL 618840, ar *5.

16 See, e.g. Harrington v. Richter, 131 S.Ct. 770, 788-89 (2011); Walker v. State, 2007 WL
2949145, at *l (Del. Oct. 11, 2007); State v. Lake, 2010 WL 1740886, at * (Del. Super. Apr. 26,
2010).

argument on this claim therefore fails to meet the second prong of Strickland
because he has not demonstrated that, had Trial Counsel so moved, it is reasonably
probable the trial judge would have granted such a motion.

17. The second ground Anderson raises in support of his claim of
ineffective assistance is that Trial Counsel did not communicate well with
Anderson. Specifically, Anderson alleges Trial Counsel “provided . . . misleading
information regarding [the] case . . . [and Anderson] was not given proper
understanding of how to proceed with [his] trial.”17 In his affidavit, Trial Counsel
denies this charge, arguing that he provided Anderson with a copy of all Rule 16
discovery and was available to meet with Anderson to discuss questions and trial
strategy. ln his reply, Anderson asserts that Trial Counsel told him there is no
“self-defense law” and Anderson therefore did not know what to say on the stand,
leading him to state that he never would hurt someone like that, which in turn led
to the admission of his prior convictions for impeachment purposes. In other
words, Anderson contends Trial Counsel did not properly prepare him to testify.

18. Anderson has not alleged with specificity sufficient grounds to meet
the first prong of Strickland as to this claim. His allegation that Trial Counsel did
not properly prepare him to testify does not defeat the strong presumption that

Trial Counsel’s representation was reasonable. Trial Counsel could not, consistent

 

11 D.i. 42 at 3.
10

with ethical standards, give Anderson a script of how to answer questions. lt is
clear from the record that self-defense was the trial strategy selected by Trial
Counsel and understood by Anderson; his testimony and Trial Counsel’s
arguments focused on a self-defense theory. Anderson’s decision to volunteer that
he never would hurt someone in that manner, which then opened the door to
admission of his prior convictions, does not demonstrate that Trial Counsel’s
representation fell below an objective standard of reasonableness

19. Anderson next argues Trial Counsel was ineffective by failing to keep
Anderson apprised regarding sentencing, including the fact that a pre-sentence
investigation was to be conducted. The trial judge announced in open court that a
pre-sentence investigation would be done, and the record reflects that the pre-
sentence office attempted to contact Anderson directly several times, without
success. Anderson’s argument is not supported by the record and does not meet
the first prong of Strickland.

20. Anderson’s fourth ineffective assistance claim is that Trial Counsel
did not effectively cross-examine Staffieri. Specifically, Anderson contends Trial
Counsel should have asked Staffieri, the victim, whether he was an alcoholic,
which “would have shone a different light on the case and would have revealed the

true nature of both parties[’] involvement in what happened.”18 Trial Counsel

 

18 Id

ll

responds that the decision not to pursue this line of questioning or call additional
witnesses was a tactical one. The record reflects that evidence of Staffieri’s
consumption of alcohol on the day of the incident was presented through the
testimony of Allan Bobb. Anderson contends Trial Counsel should have
questioned Staffieri further after he admitted at trial that he “drinks in the morning
to stop the ‘shakes,”’19 but Anderson does not explain how his contentions satisfy
either element of Strickland. Trial Counsel is entitled to a presumption that his
representation was reasonable, and this Court should not second-guess tactical
decisions regarding how aggressively to cross-examine a witness.20 Trial Counsel
did present evidence that Staffieri was under the influence of alcohol at the time of
the incident, and Anderson has not shown that, even if Trial Counsel had asked
additional questions, there is a reasonable probability the jury would have reached
a different verdict.

21. Finally, Anderson argues Trial Counsel was ineffective by steering

him toward trial, rather than encouraging him to accept the plea offer extended by

 

19 D.i. 49 at 4.

20 See Outten v. State, 720 A.2d 547, 557 (Del. 1998) (“Whether to call a witness, and how to
cross-examine those who are called are tactical decisions.”) (citing United States v. Lively, 817 F.
Supp. 453, 462 (D. Del. 1993), ajj"a', 14 F.3d 50 (3d Cir. 1993) (“[The defendant’s] claim of
ineffective assistance of counsel in regard to calling him as a defense witness boils down to a
disagreement with his counsel's trial strategy. l\/[ere criticism of a tactic or strategy, however, is
not in itself sufficient to support a charge of inadequate representation This is particularly
dispositive [w]here a defendant, fully informed of the reasonable options before him, agrees to
follow a particular strategy at trial. . . . Calling [the defendant] as a witness was a strategic
decision and under the Strickland standard does not support [the defendant’s] claim of
ineffective assistance of counsel.”) (intemal quotations and citations omitted)).

12

the State. In his response, Trial Counsel explains that Anderson rejected the
State’s plea offer at first case review, did not appear for final case review, and
never advised Trial Counsel that he wished to reconsider a plea. Anderson did not
respond to Trial Counsel’s position This claim does not meet the prejudice prong
of Strickland. That is, even if Trial Counsel failed properly to present the State’s
plea offer, that plea was for the charge for which Anderson was convicted, and the
recommended sentence was for open sentencing after a pre-sentence investigation,
which is precisely what was ordered after Anderson was convicted. Accordingly,
this claim, and the entirety of Anderson’s Motion, fails to establish ineffective
assistance of counsel.

NOW, THEREFORE, for the foregoing reasons, IT IS ORDERED that

William D. Anderson’s Motion for Post-Conviction Relief is DENIED.

§

 

Abig Wheei{ow, Mge

Original to Prothonotary

cc: Jenna Milecki, Deputy Attomey General
Timothy J. Weiler, Esquire
William D. Anderson (SBI #00292886)

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