                                       SUPERIOR COURT
                                           OF THE
                                     STATE OF DELAWARE

RICHARD F. STOKES                                               SUSSEX COU NTY C OUR THO USE
               JUDGE                                                     1 THE CIRCLE, SUITE 2
                                                                         GEORGETOWN, DE 19947
                                                                          TELEPHONE (302) 856-5264




                                       February 24, 2016



Wilmer L. Milton, Jr.
SBI# 00337177
James T. Vaughn Correctional Center
1181 Paddock Road
Smyrna, DE 19977

John W. Donahue, IV, Esquire
Department of Justice
114 E. Market Street
Georgetown, DE 19947

       RE: State of Delaware v. Wilmer L. Milton, Def. ID# 1103018831

                           DATE SUBMITTED: November 17, 2015

Dear Mr. Milton and Mr. Donahue:

       Pending before the Court are a motion for a new trial as well as a motion for

postconviction relief1 which defendant Wilmer Milton (“defendant” or “Milton”) has filed. This

is my decision denying both motions.




       1
        Defendant filed his motion for postconviction relief pursuant to Superior Court Criminal
Rule 61 (“Rule 61"). The version of this rule which applies is the one amended by the Superior
Court’s May 6, 2013 order. This version called for the appointment of counsel for an indigent
defendant’s first postconviction proceeding.

                                            1
                                   Procedural History and Facts

       On March 21, 2011, DeShawn Blackwell (“the victim” or “Blackwell”) was robbed and

shot in his home. Although he survived the shooting, his lower body is paralyzed. Five people

were arrested in connection with the robbery and shooting: Adriene Bennett (“Bennett”), Ron

Roundtree (“Roundtree”), Treymen Atkins (“Atkins”), Darrell Trotter (“Trotter”), and defendant.

All of those charged, except for defendant, entered into guilty pleas. Andre! Beauregard, Esquire

(“trial counsel”) was appointed to represent defendant at his trial.

       The evidence is viewed in a light most favorable to the State of Delaware (“the State”)

after defendant’s conviction.2 That evidence established the following. Roundtree, Atkins, Trotter

and defendant decided to rob Blackwell. The role of Bennett, a friend of the victim, was to make

sure that the victim’s door was unlocked so that the four robbers could enter the residence.

Trotter, Atkins and defendant drove from Dover to the Royal Farms outside Ellendale, Delaware.

There, they met up with Roundtree, who drove them all to Akisha Scott’s home. Her home was

near the victim’s home. As the four men were walking towards the victim’s home, they came

upon Bennett. Bennett recognized defendant and spoke to him.

       Roundtree, Atkins, Trotter and defendant entered the victim’s home. They robbed the

victim and defendant shot the victim. Roundtree drove Atkins and defendant from the scene

while Akisha Scott drove Trotter from the scene. Roundtree stopped on a back road between

Ellendale and Milton and they waited for Tina Lopez to pick up defendant and Atkins. Lopez

then drove defendant and Atkins to the Royal Farms in Ellendale. There, they met up with

Trotter. Defendant, Atkins and Trotter then drove back to Dover.


       2
           Milton v. State, 67 A.3d 1023, * 2 (Del. June 11, 2013) (TABLE).

                                              2
       Defendant advanced an alibi defense. He claimed that during the crimes, he was with his

girlfriend, Dominique Parker, at the hospital in Milford.

       Trial counsel hired an investigator to help find evidence to support defendant’s version of

events. The investigator determined defendant’s girlfriend could not recall the exact time and

date when defendant was with her nor could the employees of the hospital verify defendant was

present at the hospital at the time of the crimes.

       The following people testified that defendant, whom they personally knew, was at the

scene that night: Bennett, Roundtree, Atkins, and Trotter. Defendant, who testified against the

advice of counsel, testified that he was not at the scene. Defendant’s testimony was not credible.

       The jury convicted defendant on the charges of attempted murder in the first degree;

robbery in the first degree; burglary in the first degree; possession of a firearm during the

commission of a felony (3 counts); wearing a disguise during the commission of a felony; and

conspiracy in the second degree.

       Defendant appealed. Stephen W. Welsh, Esquire (“appellate counsel”) represented

defendant on the appeal. Three issues were raised on the appeal.

       The first argument on appeal was that the trial court erred in not granting defendant a

directed verdict on the charge of attempted murder in the first degree. The Supreme Court

concluded “the record was replete with sufficient evidence from which a rational trier of fact

could infer that Milton was the shooter” and that he intended to kill Blackwell.3 The Supreme

Court also concluded: “In addition to the identity of the shooter, there is also sufficient evidence




       3
           Id.

                                               3
from which a rational trier of fact could determine that the shooter intended to kill Blackwell.”4

       The second issue concerned side-bar conferences. The Supreme Court would not address

this issue because defendant did not develop a sufficient record on appeal.

       The third issue was whether the Trial Court abused its discretion in limiting the cross-

examination of the victim’s girlfriend. Defendant argued the Court erred by prohibiting him from

impeaching the victim’s in-court testimony through cross-examination of a later in-court witness.

The Supreme Court ruled:

          Here, even if Milton could demonstrate that the trial judge abused his discretion
       in limiting the cross-examination of ... [the witness], he cannot demonstrate
       significant prejudice such that he was denied a fair trial. First, as previously
       stated, the record was replete with evidence from which a rational trier of fact
       could find Milton guilty beyond a reasonable doubt for the crimes charged.
       Second, the record reflects that Blackwell’s credibility was seriously undermined
       at trial in other respects: Blackwell admitted he was a convicted felon, with two
       prior drug convictions; he admitted that he previously sold drugs; admitted that he
       had been in jail; and admitted that he was drinking alcohol and using cocaine on
       the night he was shot. In light of the evidence that had already been presented at
       trial to undermine Blackwell’s credibility, Milton cannot demonstrate that he was
       deprived of a fair trial by the exclusion of this marginally relevant impeachment
       testimony.

       The Supreme Court’s mandate in this appeal was dated June 27, 2013.

       On September 10, 2013, defendant timely filed his motion for postconviction relief.

Several times, defendant requested he be allowed to represent himself.5 Ultimately, Alexander

Funk, Esquire (“Rule 61 Counsel”) was appointed to represent defendant. Defendant filed several

motions to disqualify Rule 61 Counsel. Rule 61 Counsel filed a motion for a new trial based

upon affidavits submitted by Roundtree and Henry Boss (“Boss”). Roundtree supposedly


       4
           Id. at *6.
       5
           Docket Entries102 and 104.

                                              4
recanted his testimony that defendant shot Blackwell while Boss made a statement regarding the

case. Rule 61 Counsel also moved to withdraw on the grounds that defendant’s claims were not

valid and a search of the record did not establish that any other claims could be pursued.6

       The Court scheduled a hearing. In the meanwhile, Roundtree submitted a letter dated May

3, 2015, in which he explained he wrote the recantation affidavit because his life was being

threatened. Thereafter, Rule 61 Counsel moved to withdraw from presenting the motion for a

new trial.

       The Court held a hearing on the motions for new trial and postconviction relief on August

10, 2015.

       At this hearing, defendant pressed his motion to disqualify Rule 61 Counsel’s

representation of him.7 The Court ruled that there was no conflict of interest; there merely was a

disagreement between defendant and Rule 61 Counsel as to the merits of his postconviction

arguments. The Court found Rule 61 Counsel had represented defendant adequately and

competently. The Court reviewed with defendant his rights to representation and verified that

defendant was willingly waiving those rights. The Court concluded defendant’s desire to proceed

with the matter while representing himself was knowing, intelligent, and voluntary. The Court

granted the motion to allow defendant to represent himself.

       The hearing proceeded. Testimony was heard on the motion for a new trial and on the

ineffective assistance of counsel claims.



       6
        Defendant was upset by this motion; however, Mr. Funk was required to file this motion
in the manner in which he filed it. The Court considers defendant’s grounds for relief in any case.
       7
           Transcript (“Trans.”) of August 10, 2015 Proceedings at 3-15.

                                               5
          Thereafter, Roundtree sent another letter, dated October 21, 2015,8 wherein he states the

following: he did not know who shot Blackwell, Milton was not present at the shooting, and he

testified falsely when he said Milton shot Blackwell. He followed that letter up with an affidavit,

dated November 17, 2015,9 again stating he did not know who shot Blackwell, Milton was not

present at the shooting, and he testified falsely when he said Milton shot Blackwell.



                                          Motion for New Trial

          The motion for a new trial was based upon the recantation of Roundtree. The Court also

heard from Henry Boss (“Boss”).

          Roundtree testified as follows.

          He prepared an “Affidavit of Change of Statement” dated October 26, 2012, wherein he

stated:

          I, Ron S. Roundtree, being duly sworn, deposes and says:

          On this Day that on 03/21/11 Wilmer L. Milton JR did not shoot DeShaun
          Blackwell in the back in the Laverty Lane Appartments [sic] I Ron Sullivan
          Roundtree shot Mr. Blackwell in the Back.10

          Although he wrote this statement, it was not true.11 He was pressured into writing it by

acts of intimidation being committed against him in the prison which he felt occurred because he

had been labeled a snitch for testifying against Milton. He testified that Milton did not pressure


          8
              Docket Entry 156.
          9
              Docket Entry 160.
          10
               Exhibit C attached to Motion for New Trial, Docket Entry 121.
          11
               Trans. of August 10, 2015 Proceedings at 19.

                                                 6
him directly; however, Milton’s name was being brought up in connection with “a lot of

things.”12 Roundtree also testified about a letter which was sent to him wherein a change in his

testimony was sought. Roundtree verified that his statement that he did the shooting was made

only because of threats and pressure and was not, in fact, true.13 He wrote the affidavit so that he

could “do ... [his] time in peace.”14

        As noted earlier, since that August hearing, Roundtree has sent another letter and another

affidavit where he attempts to relieve Milton of culpability for shooting the victim. In the

affidavit, he states:

        I am writing this ... to say that on August 10th 2015 of Milton’s hearing I didn’t lie
        when I testified saying that I wasn’t the shooter. However at that hearing no one
        asked me if I really even knew who the shooter was... The answer is “No” I don’t
        know who shot Blackwell that night. “No” Milton wasn’t present that night and
        “Yes” I testified falsely at Miltons [sic] Trial!... I never seen Milton that night nor
        did I talk to Milton that night. I only said that Milton shot Blackwell because
        Trotter said Milton did it But Milton couldn’t have done it because he wasn’t
        there an [sic] the only other reason why I said that Milton did it was my P.d.
        “Richard Lyle” showed me confidentuale [sic] document from Milton [sic] file
        that I had “No” business seeing! An [sic] that Liguori told me had I gone to trial
        Milton was going to testify on me, an [sic] that I would be given life had I not
        pointed the finger at Milton. I got spooked an [sic] lied. I am sorry for lieing [sic].
        Liguori told me that I was Golden if I did what he said an [sic] that I was only
        going to get 6 yrs! I asked Lyle an [sic] Liguori to interview Mr. Milton to see
        what he was going to say so that we could pre-pare [sic] a defence [sic] for my
        trial. I testified falsly [sic] an [sic] I made it known when I said that this was the
        first time that anybody has heard this story.15



        12
             Id. at 30.
        13
             Id. at 28.
        14
             Id. at 35.
        15
         Docket Entry 160. The October 21, 2015 letter and November 17, 2015 affidavit are
nearly identical.

                                               7
       At the August hearing, Roundtree’s father also testified to a letter that was sent to Akisha

Scott, Roundtree’s ex-girlfriend, which attempted to pressure her into testifying that Roundtree

was the shooter. The letter’s envelope, date stamped July of 2012, indicated the sender was

Henry Boss.

       Henry Boss (“Boss”) testified at the motion for a new trial. He stated he did not send the

above-referenced letter to Akisha Scott; anyone could have put his name on the return address

portion of the envelope. Boss also testified with regards to his affidavit dated September 10,

2013.16 In the affidavit, he reported that Roundtree told him that he, Roundtree, shot Blackwell

and that Milton was at the hospital with his girlfriend when all this happened. Boss testified that

Roundtree told him this when they were in the same unit together for a few days at Sussex

Correctional Institution. It was established that Boss and defendant were housed in the same area

during some period.

       I do not find Boss’s testimony credible. Consequently, I reject Boss’s testimony regarding

Roundtree’s supposed statements.

       I now turn to Roundtree’s recantation. The defendant has the burden of proving, by clear

and convincing evidence, the falsity of the trial testimony. 17 The Court employs the three-part test

in Larrison v. United States18 to determine whether to grant a new trial based on recanted

testimony. As the Supreme Court noted in Durham,



       16
            Exhibit C-4, attached to Docket Entry 91.
       17
          State v. James, Def. ID# 1003006262, at 4, Witham, R.J. (Del Super. June 9, 2011),
aff’d, 35 A.3d 418 (Del. Jan. 3, 2012) (TABLE).
       18
            24 F.2d 82 (7th Cir. 1928).

                                               8
       Larrison held that a new trial motion should be granted if: (i) the trial court is
       reasonably well satisfied that the testimony given by a material witness is false;
       (ii) without the testimony, the jury might have reached a different verdict; and (iii)
       the party seeking the new trial was taken by surprise when the false testimony was
       given and was unable to meet it or did not know of its falsity until after trial.
       [Footnote and citation omitted.]19

       I find that Roundtree’s recantations are false. Milton, through his associates or friends,

has continuously attempted to intimidate Roundtree into testifying that Milton was not present at

the scene and that Roundtree, and not Milton, shot Blackwell. This intimidation started before

the trial20 and has continued.21 It is because of this intimidation that Roundtree seeks to change

his testimony.

       My conclusion is that Roundtree’s trial testimony was not false. The Larrison analysis

ends there because the absence of one of the three prongs precludes the granting of a new trial.

       The evidence was overwhelming that Milton was at the scene. Milton was the only person

to testify he was not present and his testimony was not credible. Admittedly, the various

witnesses made inconsistent statements about what happened that evening. However, the

witnesses were cross-examined on their various versions of events. The jury had before it all the

facts and inconsistencies and it decided that Milton participated in the plan to rob Blackwell and

that Milton was the one who shot Blackwell with the intent to kill him. As the Supreme Court

ruled, sufficient evidence supported that decision.22



       19
            Durham v. State, 35 A.3d at *1.
       20
            Transcript of March 14, 2012 Proceedings, B-85-6.
       21
            Trans. of August 10, 2015 Proceedings at 17-39.
       22
            Milton v. State, 67 A.3d at *2.

                                              9
        Based on what has occurred to date, the Court expects Milton will continue to pressure

Roundtree and possibly other witnesses to recant. The Court will not consider any further

recantations as a basis for a new trial.

        For the foregoing reasons, the motion for a new trial is DENIED.



                                   Motion for Postconviction Relief

        The Court granted postconviction counsel’s motion to withdraw. It now considers

defendant’s numerous claims for postconviction relief.

        Except for the ineffective assistance of counsel claims, all claims are procedurally barred

either because they were not raised in the proceedings leading to the judgment of conviction or

because they previously were considered on appeal. Furthermore, no exceptions to the procedural

bars saves them.23 However, because defendant pursues these barred claims through his


        23
             The procedural bars in the applicable version of Rule 61 provide as follows:

           Bars to relief. (1) Time limitation. A motion for postconviction relief may not be
        filed more than one year after the judgment of conviction is final or, if it asserts a
        retroactively applicable right that is newly recognized after the judgment of
        conviction is final, more than one year after the right is first recognized by the
        Supreme Court of Delaware or by the United States Supreme Court.
           (2) Repetitive motion. Any ground for relief that was not asserted in a prior
        postconviction proceeding, as required by subdivision (b)(2) of this rule, is
        thereafter barred, unless consideration of the claim in warranted in the interest of
        justice.
           (3) Procedural default. Any ground for relief that was not asserted in the
        proceedings leading to the judgment of conviction, as required by the rules of this
        court, is thereafter barred, unless the movant shows
           (A) Cause for relief from the procedural default and
           (B) Prejudice from violation of the movant’s rights.
           (4) Former adjudication. Any ground for relief that was formerly adjudicated,
        whether in the proceedings leading to the judgment of conviction, in an appeal, in a
        postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter

                                                 10
ineffective assistance of counsel claims, I consider the merits of his claims. I do so because

frankly, it is simpler this way. The exceptions to that decision are the argument in defendant’s

Claim 6 regarding insufficiency of evidence and a portion of the argument he makes in Claim 12

regarding off the record sidebar discussions. The Supreme Court heard and considered those

claims and there is no basis for them to be heard or considered again.



Prosecutorial Misconduct Claims

       Many of defendant’s arguments are based upon his contention that his version of events,

that he was not present at the scene, is the truthful version. He thus labels other witnesses’

versions as false and he argues the prosecutor, relying upon those statements, was presenting

false testimony and committing other wrongs. However, defendant’s version of what occurred is

not considered. The jury rejected that version and all arguments or claims based on defendant’s

version of events fail.

       I turn to defendant’s specific claims of prosecutorial misconduct.

       * Prosecutorial misconduct, failure to correct witnesses and to alert defense

       State prosecutor knowingly allowed his witnesses to testify falsley [sic] and done
       nothing to prevent this from happening, failed to correct his witnesses and failed
       to alert the defense of false testimony as required, thus state prosecutors’ [sic]
       capitalize from the false testimony, violating defendants’ [sic] constitutional
       rights.



        barred, unless reconsideration of the claim is warranted in the interest of justice.
         (5) Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this
       subdivision shall not apply to a claim that the court lacked jurisdiction or to a
       colorable claim that there was a miscarriage of justice because of a constitutional
       violation that undermined the fundamental legality, reliability, integrity or fairness
       of the proceedings leading to the judgment of conviction.

                                               11
        * Prosecutorial misconduct improper comments, statements, insertion of personal
        knowledge and flagrantly arguing off the record.

        State prosecutor used a number of improper tactics constituting his conduct to be
        improper thus state prosecutors’ improper misconduct violated the defendants’
        constitutional rights.

        Defendant argues that the State knowingly entered false testimony of Roundtree. He

argues that Roundtree testified he did not give any other statements to the police after March 21,

2011,24 but discovery shows that Roundtree gave Detective King a statement on March 22 at

1907 hours (7:07 p.m.).

        The shooting happened the evening of March 21, 2011. Detective King testified that

Roundtree turned himself in to the Troop at 11:47 p.m. on March 21, 2011.25 Everyone, including

the defense, was aware there were three interviews of Roundtree and the interviews took place

mostly on March 22, 2011.26 The third interview took place on March 22, 2011, at 7:07 p.m.

During the trial, the State and trial counsel extensively examined Roundtree and Detective King

about these interviews.

          The reference to the last interview being on March 21 clearly was a mistake. The Court

rejects defendant’s attempt make this statement into false testimony. The Court will not examine

defendant’s subarguments related to his premise that Roundtree testified falsely and the

prosecutor failed to correct this error. This claim fails because it is frivolous.

        Defendant’s next argument concerns a dispute in the testimony regarding who smacked


        24
             Trans. of March 15, 2012 Proceedings at C-166.
        25
             Trans. of March 16, 2012 Proceedings at D-12 - 13; D-19; D-89; D-108-09; D-111; D-
126-27.
        26
             Transcript of March 15, 2012 proceedings at C-175.

                                                12
the victim with a gun. The victim testified it was Roundtree. Roundtree testified it was Treymen

Atkins. From that conflicting testimony, defendant argues the prosecutor violated the constitution

by providing false testimony through Roundtree. He maintains the prosecutor knew this

testimony was false because the prosecutor argued that Roundtree smacked the victim with the

gun.

        It is clear that the version of events the prosecutor chose to argue was that of Roundtree

smacking the victim with the gun at or about the same time as defendant shot the victim. There

was evidence for that version. There were various versions of the robbery and shooting. They

were presented to the jury by way of direct testimony and cross-examination. The jury made the

credibility determinations. The prosecutor had no duty to do anything in this situation. This claim

fails because it is meritless.

        Defendant argues that the prosecutor failed to correct Adriene Bennett’s testimony. 27

Bennett testified she saw defendant outside of the victim’s residence before the shooting. She

also testified she was high on drugs at the time. Defendant contends she did not see him that

night and the fact she was impaired prevented her from being able to identify anyone. He

concludes her testimony was false and the prosecutor committed misconduct by presenting it and

not pointing out that it was false.

        The only basis for defendant arguing the testimony was false is that defendant says it is.

This argument fails.

        Defendant makes an argument about the prosecutor not correcting Detective King’s

testimony regarding cell phone records. Someone obtained some cell phone records. However, it


        27
             Trans. of March 14, 2012 Proceedings at B-16-37.

                                               13
is not established who did. The Detective was asked about them and replied that he never had

seen them. He was also asked if anybody got cell phone records and he said no. Defendant argues

that this was false testimony because “someone” obtained the records. The officer clearly

testified he did not obtain the records. Absent defendant establishing the Detective himself

obtained the cell phone records, he cannot say this testimony was false. This argument and the

subarguments based upon it are meritless. This claim fails.

       Defendant has advanced a multitude of claims of improper statements in the prosecutor’s

closing statements, including the offensive and frivolous argument based on his completely

incorrect contention that the evidence does not show the victim was paralyzed. This Court has

reviewed the prosecutors’ closing arguments.28 The prosecutor did not make any argument that

was improper in any way. Not one of defendant’s claims of improper argument during the

closing is meritorious.

       Prosecutorial misconduct, improper questioning

       State prosecutor purpusly [sic] questioned the defendant about his and Ms.
       Lopez’s sex in all attempts to attack the defendants [sic] character. This was not
       an [sic] rape prosecution thus any questions in volving [sic] or relating to sex are
       irrelevant to the case-in-chief, this line of questioning violated the defendants’
       [sic] constitutal [sic] rights.

       The question about defendant having sex with Tina Lopez was made during cross-

examination to determine what relationship defendant had with her.29 There was nothing

improper about the question. No prosecutorial misconduct occurred. This claim fails.

       State prosecutor used a prior mugshot [sic] of the defendant from six years ago


       28
            Trans. of March 19, 2012 Proceedings at E-112-142; E-168-177.
       29
            Trans. of March 16, 2012 Proceedings at D-182.

                                              14
         violating the defendants [sic] constitutional right to an [sic] fair trial thus trial
         Judge ordered State prosecutor to show Mr. Beauregard the date that was on the
         mugshot [sic] that was said to have been removed, thus the record do not reflect
         that this ever happened.

         Defendant argues it was plain error to use a mug shot of defendant which was six years

old and it was plain error for the Court to admit the photograph and/or for the prosecutor to enter

it into evidence. The facts show that the older mug shot was not presented or entered into

evidence.30 Instead, the only mug shots presented and entered into evidence were from the date of

defendant’s arrest on March 22, 2011. This argument fails because it is based upon erroneous

facts.



Claims Against the Court

         Trial Judge failed to intervene and stop state prosecutors’ [sic] flagrant
         misconduct, thus trial judges [sic] sole purpos [sic] of being apart [sic] of the trial
         is to assure or see to it that the defendants’ constitutal [sic] rights are not purposly
         [sic] violated and that each of the attorneys’ [sic] up holds [sic] their duty of
         proper conduct.

         Specifically, defendant argues that the trial court had the obligation to sua sponte step in

and correct what he labels misconduct by the prosecutor. The Court earlier concluded there was

no prosecutorial misconduct. This claim has no merit and it fails.



Claim Regarding Amended Superceding Indictment

         Trial Judge along with State prosecutor and defense attorney impermissibly
         allowed and participated in violating the defendants [sic] constitutional rights by
         amending the indictment after defendant had been properly indicted.



         30
              Trans. of March 19, 2012 Proceedings at E-22-57.

                                                 15
       Defendant argues the indictment was amended to omit a charge of possession of a deadly

weapon by a person prohibited after the Grand Jury indicted him on that charge.

       The count of possession of a deadly weapon by a person prohibited was severed pursuant

to the agreement of counsel.31 It was severed to prevent undue prejudice to defendant. Had

defendant not testified and had the count remained as part of this case, then the Jury would have

heard testimony about defendant’s previous convictions. To prevent possible prejudice, the count

was severed. Once it was severed, an amended indictment which reflected the omission of this

charge was filed. This claim is meritless and fails. Any ineffective assistance of counsel claim

based upon this claim fails, also.



Claim Regarding Insufficient Evidence

       Insufficient evidence

       State prosecutor failed to meet his burden of proving the element of “intentional”
       kill.

       This is the same argument defendant advanced on appeal. The Supreme Court ruled

against him, as noted earlier in this decision. The claim is barred pursuant to Superior Court

Criminal Rule 61(i)(4). Defendant has not advanced any reason why the claim should be

reconsidered in the interest of justice. Defendant has presented nothing to show the existence of

any exceptions to the procedural bars. The claim fails.




       31
            Trans. of March 13, 2012 Proceedings at A-7.

                                              16
Ineffective Assistance of Counsel Claims

       In assessing if trial counsel has been effective, this Court employs the two-part standard

set forth in Strickland v. Washington, 466 U.S. 668 (1984). Delaware’s Supreme Court has

explained what this standard requires in Shelton v. State:32

       [Defendant] must ... prove that: (1) “counsel’s representation fell below an
       objective standard of reasonableness,” and (2) that counsel’s actions were
       prejudicial to his defense, i.e., “there is a reasonable probability that, but for
       counsel’s unprofessional errors, the result of the proceeding would have been
       different.” The prejudice prong of the Strickland standard requires “attention to
       whether the result of the proceeding was fundamentally unfair or unreliable.”
       There is a strong presumption that defense counsel’s conduct constituted sound
       trial strategy. Further, a defendant “must make specific allegations of actual
       prejudice and substantiate them.” [Footnotes and citations omitted.]33

Should the defendant fail to make concrete allegations of ineffective assistance of counsel and

fail to substantiate them, then the claim will be summarily dismissed.34



1) Claims as to Appellate Counsel

       Ineffective assistance of appellate counsel

       Appellate counsel failed to consult with the defendant about the factual claims
       that need to be raised thus appellate counsel failed to raise the most important
       claims.

       Defendant argues appellate counsel was ineffective because he failed to raise various

issues on appeal. Specifically, he failed to raise prosecutorial misconduct claims; abuse of court’s


       32
            744 A.2d 465, 475 (Del. 2000), cert. den., 530 U.S. 1218 (2000).
       33
      Accord Jefferson v. State, 966 A.2d 348, 2009 WL 2523331, at *1 (Del. Feb. 4, 2009)
(TABLE); Anker v. State, 941 A.2d 1018, 2008 WL 187962 (Del. Jan. 9, 2008) (TABLE).
       34
       Younger v. State, 580 A.2d 552, 556 (Del. 1990); Pierce v. State, 966 A.2d 348, 2009
WL 189150, * 1 (Del. Jan. 16, 2009) (TABLE).

                                               17
discretion in failing to hear defendant’s motion to disqualify trial counsel; abuse of trial judge’s

discretion in failing to stop state prosecutor’s flagrant misconduct during trial; and ineffective

assistance of counsel claims.

        The prosecutorial misconduct claims he asserts appellate counsel failed to raise were that

the prosecutor vouched for the credibility of government witness; the prosecutor indicated

information not presented to the jury supported the testimony of the witness; and he bolstered the

credibility of his witnesses by referring to matters outside the record. Because I conclude there

was no prosecutorial misconduct, I reject defendant’s contention that appellate counsel was

ineffective in failing to raise these issues on appeal.

        Defendant further argues that he filed a motion to disqualify counsel and appellate

counsel’s failure to raise this issue on appeal has prevented defendant from raising this issue in

the postconviction matter. This Court notified defendant that he could discharge trial counsel but

the Court would not appoint another attorney to represent him absent a statement from trial

counsel that there was a conflict.35 Defendant did not pursue this motion to disqualify counsel

and trial counsel did not notify the Court of any conflict. No record was established for raising

the issue of whether trial counsel should have been disqualified. Appellate counsel was not

ineffective for not raising this issue on appeal. This claim fails.

        Defendant next argues that appellate counsel failed to raise the issue of the trial judge’s

abuse of discretion with regard to the prosecutorial misconduct issues. Because I have concluded

no prosecutorial misconduct occurred, this claim fails.

        Finally, defendant argues appellate counsel failed to consult with defendant in a manner


        35
             Docket Entry 42.

                                                18
defendant considered sufficient before appellate counsel filed his brief. Defendant told appellate

counsel the claims he wanted raised and appellate counsel said they would not be successful. In

particular, with regard to the ineffective assistance of counsel claim, defendant felt it should be

raised. Appellate counsel ignored defendant; defendant had to file his own brief on appeal.36

       The claims advanced in this argument are too vague to consider but for the contention

that appellate counsel did not pursue an ineffective assistance counsel claim on appeal. Except in

very rare situations, the Supreme Court does not consider ineffective assistance of counsel claims

on direct appeal.37 Appellate counsel was not ineffective for not raising, on appeal, the issue of

trial counsel’s alleged ineffectiveness. Even if he was, defendant cannot show any prejudice in

this case; all of his ineffective assistance of counsel claims are being heard in this proceeding.

This claim fails.



2) Claims as to Trial Counsel

       Defendant has stated numerous claims of ineffective assistance of counsel against trial

counsel. I set forth his general arguments below.

       * Ineffective assistance of trial counsel, creation of unfair prejudice.

       Defense attorney created photo’s [sic] that were admitted into evidence without
       properly being established. Counsel claimed that the photo’s [sic] were to
       establish that the defendant was not present with alledeged [sic] accomplices at


       36
         The Supreme Court did not consider this brief and informed defendant that if he wished
to proceed pro se, then he needed to file the appropriate motion. November 20, 2012 letter from
LaToya S. Brady in Milton v. State, No. 343, 2012. Defendant never filed a motion to proceed
pro se.
       37
        Desmond v. State, 654 A.2d 821, 829 (Del. 1994); Thelemarque v. State, 2016 WL
556631, * 3 (Del. Feb. 11, 2016).

                                               19
       the so-called meeting place but the alledged [sic] accomplices were never identified in the
       photo’s [sic] thus defense counsel violated the defendants [sic] constitutional rights by
       suggesting that the state use the photo’s [sic] against the defendant.


       * Ineffective assistance of trial counsel, failure to investigate

       Defense attorney failed to investigate period, the defendant had not one single
       witness called to the stand in his behalf by counsel even though counsel was well
       aware that fact witnesses, corroborating witnesses, character witnesses and alibi
       witnesses were available. Counsels’ [sic] lack of investigation violated the
       defendants [sic] constitutional rights.


       * Ineffective assistance of counsel, failure to raise timely objections

       Defense counsel abandoned the defendant and the defendants [sic] due process by
       failing to object to all of State prosecutors’ flagrant improper misconduct during
       trial, thus defense counsel failure to raise timely objections violated the
       defendants [sic] constitutional rights.


       * Ineffective assistance of counsel, failure to provide discovery, failure to apprise
       defendant of the status of the case, and failure to consult with defendant
       concerning defense strategy.


       Defense counsel failed to provide the defendant with discovery simply because
       the defendant had wished to proceed pro se thus counsel did not like this so
       defense counsel just completely, purpusfully [sic] keep [sic] the defendant shut
       out from the facts and evidence in his own case, this was a clear violation of
       defendants [sic] constitutional rights.

       This Court held a hearing on defendant’s ineffective assistance of counsel claims. The

Court limited the testimony to the following topics:

       1) The handling of Deshawn Blackwell’s testimony;

       2) Whether Deshawn Blackwell’s medical records contained any information which could

have aided defendant’s defense;

                                               20
       3) The photographs trial counsel introduced;

       4) Counsel and the private investigator’s pretrial investigation and results thereof; and

       5) Trial counsel’s contact with Dominique Parker, defendant’s girlfriend and potential

alibi witness.

       Where there was a dispute of fact between trial counsel’s testimony38 and defendant’s

testimony, I accept trial counsel’s testimony. I have concluded, based upon observations of

defendant, that he does not always tell the truth. I find that trial counsel was truthful.

       I find that trial counsel sent defendant discovery as well as all other information he had. I

also find that trial counsel consulted with defendant. Although he may not have consulted with

defendant for as long a period as defendant wanted, he consulted with him for a sufficient

amount of time. Trial counsel was not ineffective with regards to communicating with defendant.

Alternatively, defendant has failed to specify what prejudice resulted from the lack of discovery

and/or limited periods of consultation.

       Trial counsel had limited funds for conducting an investigation in this case. He hired a

private investigator. Defendant’s defense was that he was not present at the scene. The

investigation was limited to supporting that contention. The investigation was not fruitful. The

investigator could not locate anyone who could testify to defendant’s alibi with certainty.

Defendant has not named one person, with the exception of Dominique Parker, who might have

testified on his behalf and in a manner which would have changed the outcome of the trial. With

regards to Dominique Parker, trial counsel testified his investigator interviewed her and her

testimony would not have been helpful. She could not provide solid alibi testimony. It was


       38
            Trans. of August 10, 2015 Proceedings at 75-128.

                                               21
reasonable not to call her to the stand. Thus, no witnesses were called to testify on behalf of

defendant’s alibi defense. Trial counsel’s investigation was reasonable in light of the defense.

Trial counsel’s strategy not to call Ms. Parker was reasonable in light of her vague recollection.

Trial counsel’s strategy not to call any other witnesses was reasonable in light of the fact that

none have been identified who could help defendant’s case.

       Trial counsel’s strategy was to throw doubt on defendant’s presence at the scene. The

victim initially told the police that three men were present and he identified Roundtree as the

shooter. That was helpful to defendant’s contention he was not present at the scene. It was not

perfectly clear whether the victim had been medicated at the time he made this initial statement.

Nor was it clear whether the victim was under the influence of illegal drugs at this time. Trial

counsel wanted that first statement to have been made while the victim was cognizant and not

under the influence of any medicines or illegal drugs. He did not want to obtain the medical

records and have them establish that the victim’s first interview was made while he was under

the influence of any drugs, legal or not. This was a reasonable and effective trial strategy. Trial

counsel was not ineffective as to the victim’s testimony and not obtaining his medical records.

       Photographs of a man who resembled defendant but whom trial counsel and defendant

maintained was not defendant are the basis for one of defendant’s claims of ineffective assistance

of counsel. The State obtained from Royal Farms video taken there on March 21, 2011. Detective

King was unable to open this video. However, trial counsel was able to open it and to “screen

grab” pictures of a man who resembled defendant. Trial counsel was confident the pictures were

not of defendant because the height of the depicted person was not the same as defendant’s and

the clothing of the depicted person differed from that which defendant was said to have been

                                               22
wearing on March 21, 2011. Trial counsel’s strategy was that defendant could have been

misidentified because someone who looked like him was at the Royal Farms during the pertinent

time.39 Trial counsel reviewed the photograph with defendant and defendant was agreeable to it

being admitted. I conclude trial counsel’s strategy regarding the pictures was reasonable under

these facts.

        Trial counsel felt the more confusion he created, the greater defendant’s chance of not

being convicted. Trial counsel’s strategy was reasonable. He entered the trial where

overwhelming evidence existed against defendant as a principal or accomplice. I find that trial

counsel’s representation was not ineffective.

        Finally, I find that trial counsel strongly recommended that defendant not testify.

Defendant refused to take this advice. Defendant’s testimony that he was not present at the crime

scene was not credible and he otherwise damaged himself by admitting to a serious and violent

criminal history, selling drugs, teaching co-defendant Atkins how to sell drugs, and instructing

Atkins on how to commit a robbery.

        In conclusion, defendant has failed to establish ineffective assistance of appellate or trial

counsel.




        39
         Trans. of Aug. 10, 2015 Proceedings at 85-97. The transcript of these proceedings
references the facts in this argument.

                                                23
                                          Conclusion

       For the forgoing reasons, the Court denies defendant’s motion for a new trial and it denies

defendant’s motion seeking postconviction relief.

       IT IS SO ORDERED.

                                                       Very truly yours,



                                                    /s/ Richard F. Stokes

                                                       Richard F. Stokes



cc: Prothonotary’s Office
    Andre! M. Beauregard, Esquire
    Stephen W. Welsh, Esquire
    Alexander W. Funk, Esquire
    Thomas D. Donovan, Esquire
    Ronald D. Phillips, Jr., Esquire
