      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE,                          )
                                            )
      v.                                    )            I.D. # 1206000145 A&B
                                            )
ROBERT WORLEY,                              )
                                            )
                    Defendant.              )

                          MEMORANDUM OPINION

           Upon Defendant’s Motion for Postconviction Relief – DENIED
                          Submitted: February 17, 2016
                            Decided: March 9, 2016




Patrick J. Collins, Esquire, Collins & Associates, Wilmington, DE, Attorney for
Defendant.

Matthew Frawley, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, DE, Attorney for the State of Delaware.




ROCANELLI, J.
I. PROCEDURAL HISTORY

          Raheem Green was stabbed on April 25, 2012. Based on its investigation,

the police arrested Defendant Robert Worley, and Worley was indicted in July

2012 for Assault First Degree, Possession of a Deadly Weapon During the

Commission of a Felony (―PDWDCF‖), and Possession of a Deadly Weapon by a

Person Prohibited (―PDWBPP‖).                 Counsel was appointed for Worley (―Trial

Counsel‖).

          The charges were severed. After a three-day jury trial, on April 11, 2013,

the jury returned a verdict of Guilty for Assault First Degree, PDWDCF, and the

Trial Court1 returned a verdict of Guilty for PDWBPP. On April 22, 2013, Worley

moved for a new trial, which was denied on May 15, 2013. On May 17, 2012,

Worley was sentenced as an habitual offender pursuant to 11 Del. C. § 4214(a) to

55 years at Level V. Worley appealed his conviction, which was affirmed by the

Delaware Supreme Court on December 9, 2013.2

          On June 27, 2014, Worley filed a timely motion for postconviction relief as

a self-represented litigant. Counsel was appointed in connection with Worley‘s

postconviction relief motion and filed an amended motion on Worley‘s behalf




1
    The ―Trial Court‖ references the presiding judge to whom this case was assigned for trial.
2
    See Worley v. State, 82 A.3d 730 (Table) (Del. 2013).


                                                  1
(―PCR Motion‖).             The State opposes Worley‘s PCR Motion, and Trial Counsel

has filed an affidavit addressing trial strategy.

II. FACTS PRESENTED AT TRIAL SUPPORTING CONVICTION

          The following facts are taken from Worley‘s direct appeal:

          On the night of the attack, Green was visiting his grandmother, whose
          home is adjacent to a liquor store. Green went to the liquor store to
          purchase lottery tickets for his grandmother and later returned to the
          store to purchase a bottle of water. On his second trip to the store,
          Green saw Worley standing in front of an abandoned building.
          Worley yelled at Green and called him derogatory names. Worley
          followed Green into the liquor store and continued to harass him. The
          verbal confrontation became physical but was eventually broken up.
          Later, Green returned to the store after realizing he was missing his
          phone and pocketbook. Worley entered behind him and stabbed
          Green in his right side, puncturing a lung.

          The police investigation involved two separate photographic lineups
          wherein Green identified Worley as his attacker. Two other
          eyewitnesses also saw Worley enter the store holding a knife before
          the attack. One of those witnesses testified that he heard Worley say,
          ‗I‘m going to kill this faggot.‘ The investigation also revealed
          surveillance footage from inside the liquor store that depicted the
          altercation but did not show faces clearly. Police officers were able to
          watch the video on the store‘s monitor but unable to make a copy after
          several attempts.3

III. CONSIDERATION OF PROCEDURAL BARS

          Superior Court Criminal Rule 61 governs Worley‘s PCR Motion.

Postconviction relief is a ―collateral remedy which provides an avenue for




3
    Id. (internal citations omitted).
                                              2
upsetting judgments that have otherwise become final.‖4 To protect the finality of

criminal convictions, the Court must consider the procedural requirements for

relief set out under Rule 61(i) before addressing the merits of the motion.5

       Rule 61(i)(1) bars a motion for postconviction relief if it is filed more than

one year from the final judgment;6 this bar is not applicable as Worley‘s first

postconviction motion was timely. Rule 61(i)(2) bars successive postconviction

motions;7 this bar is not applicable as Worley has not filed successive motions.

Rule 61(i)(3) bars relief if the motion includes claims not asserted in prior

proceedings leading to the final judgment unless the movant shows cause for relief

from the procedural default and prejudice from violation of the movant‘s rights.8

Rule 61(i)(4) bars relief if the motion includes grounds for relief formerly

adjudicated in any proceeding leading to the judgment of conviction, in an appeal,

or in a postconviction proceeding.9 Rules 61(i)(3) and 61(i)(4) are not applicable

because Worley‘s claims are for ineffective assistance of counsel, which could not

have been raised in Worley‘s direct appeal.10


4
  Flamer v. State, 585 A.2d 736, 745 (Del. 1990).
5
  Younger v. State, 580 A.2d 552, 554 (Del. 1990).
6
  Super. Ct. Crim. R. 61(i)(1).
7
  Super. Ct. Crim. R. 61(i)(2).
8
  Super. Ct. Crim. R. 61(i)(3).
9
  Super. Ct. Crim. R. 61(i)(4).
10
   See Thelemarque v. State, No. 225, 2015, 2016 WL 556631, at *3 (Del. Feb. 11, 2016)
(―[T]his Court will not review claims of ineffective assistance of counsel for the first time on
direct appeal.‖); Watson v. State, 80 A.3d 961 (Del. 2013) (―It is well-settled that this Court will
not consider a claim of ineffective assistance that is raised for the first time in a direct appeal.‖).
                                                  3
IV. WORLEY’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

       In his PCR Motion, Worley argues that Trial Counsel‘s performance was

ineffective by failing to: (1) suppress eyewitness identifications; (2) effectively

cross-examine witnesses regarding their identifications; (3) request a more detailed

eyewitness identification jury instruction; and (4) consult with and present expert

testimony on the subject of eyewitness identifications.

       A. Standard for Ineffective Assistance of Counsel

       The Sixth Amendment guarantees defendants in criminal trials the right to

counsel.11   To assure that the outcome of a criminal trial is just, defendants

furthermore have ―the right to effective assistance of counsel.‖12 The standard

used to evaluate claims of ineffective counsel is the two-prong test articulated by

the United States Supreme Court in Strickland v. Washington,13 as adopted in

Delaware.14 The movant must show that (1) trial counsel‘s representation fell

below an objective standard of reasonableness; and (2) there is a reasonable

probability that, but for trial counsel‘s unprofessional errors, the result of the

proceeding would have been different.15 Failure to prove either prong will render



Moreover, the State concedes in its Response to Worley‘s PCR Motion that Worley‘s claims are
not procedurally barred.
11
   Gideon v. Wainright, 372 U.S. 335, 342-43 (1963).
12
   McMann v. Richardson, 397 U.S. 759, 771 (1970).
13
   466 U.S. 668 (1984).
14
   See Albury v. State, 551 A.2d 53 (Del. 1988).
15
   Strickland, 466 U.S. at 687.
                                             4
the claim insufficient;16 therefore, even if it can be shown that a professionally

unreasonable error is made by counsel, a defendant must still show that the error

had an effect on the judgment.17 Here, the Court must look to see if there is a

reasonable probability that the judgment would have been different had Trial

Counsel not made the alleged errors.18                 This standard is lower than a

preponderance of the evidence standard as it only needs to undermine confidence

in the outcome of the trial.19 Moreover, the Court shall dismiss entirely conclusory

allegations of ineffective counsel.20

       With respect to the first prong—the performance prong—the movant must

overcome the strong presumption that counsel‘s conduct was professionally

reasonable.21    To satisfy the performance prong, Worley must assert specific

allegations to establish that Trial Counsel acted unreasonably.22 The United States

Supreme Court has pointed to ―prevailing professional norms‖ as the standard

against which to judge the reasonableness of counsel‘s representation with great



16
   Id. at 688; see also State v. McLaughlin, 2014 WL 2964945, at *2 (Del. Super. July 2, 2014)
aff’d, 2015 WL 1306916 (Del. Mar. 23, 2015) (―Because a defendant must show both that an
attorney made a professionally unreasonable error and that the error had an effect on the
judgment, failure to prove either is sufficient to defeat a claim of ineffective assistance.‖);
Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996).
17
   Strickland, 466 U.S. at 692.
18
   Id. at 694.
19
   Id.
20
   Younger, 580 A.2d at 555; Jordan v. State, 1994 WL 466142, at *1 (Del. Aug. 25, 1994).
21
   Strickland, 466 U.S. at 687–88.
22
    Id. at 688; Wright v. State, 671 A.2d 1353, 1356 (Del. 1996) (―Mere allegations of
ineffectiveness will not suffice.‖).
                                              5
deference given to Trial Counsel‘s strategic judgments.23 Simply because another

strategy may have produced a better outcome in hindsight is not enough for a court

to rule that a lawyer‘s performance was ineffective, given the strong presumption

that the performance was adequate.24

       With respect to the second prong—the prejudice prong—cumulative error

can satisfy the prejudice prong when it undermines confidence in the verdict.25

The movant must provide concrete allegations of prejudice, specifying the nature

of the prejudice and the adverse effects actually suffered.26

        B. Trial Counsel’s strategy was reasonable.

       Worley challenges several of Trial Counsel‘s trial decisions; however, this

Court finds that Trial Counsel made strategic decisions based on reliance on his

extensive professional experience with juries such that Worley has failed to

demonstrate the first prong – the performance prong – of Strickland.

       First, Worley contends that Trial Counsel was ineffective for failing to move

to suppress four out-of-court eyewitness identifications and one in-court

identification.   Specifically, Worley alleges that the police used unnecessarily

suggestive tactics while interviewing Green and the two witnesses and, therefore,

there was a substantial likelihood of irreparable misidentification. However, Trial
23
   Strickland, 466 U.S. at 688 (―The proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.‖).
24
   See id. at 680, 689, 712.
25
   See Starling v. State, 2015 WL 8758197, at *14-15 (Del. Dec. 14, 2015).
26
   Strickland, 466 U.S. at 692; Dawson, 673 A.2d at 1196.
                                              6
Counsel strategically chose not to move to suppress these identifications based on

the high burden of proof to suppress identifications,27 Trial Counsel‘s conclusion

that there was a limited chance at success of suppression, and belief that he could

appropriately argue the weaknesses in the identifications to the jury. The record

supports Trial Counsel‘s conclusions and Worley has failed to demonstrate that the

identifications were so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.28

       Second, Worley argues that Trial Counsel failed to ―probe every possible

issue with each and every witness‖ and, therefore, Trial Counsel‘s cross-

examinations were cursory and did not help the jury determine the witnesses‘

credibility.29 Effective cross-examination is essential to a fair trial;30 however, how




27
  See Monroe v. State, 28 A.3d 418, 431 (Del. 2011) (internal citations omitted) (holding that in
determining where an identification is admissible, the trial judge applies a two-prong test:

       First, the trial judge must determine whether the pretrial identification procedure
       was impermissibly suggestive. That is, the trial judge must decide if the
       identification procedure was so impermissibly suggestive as to give rise to a very
       substantial likelihood of irreparable misidentification. Second, if the trial judge
       determines that a lineup procedure is impermissibly suggestive, he or she must
       determine whether the identification is nonetheless reliable. To determine the
       reliability of the identification, the trial judge must apply the Neil v. Biggers
       totality of the circumstances test and consider: first, the opportunity of the witness
       to view the criminal at the time of the offense; second, the witness‘ degree of
       attention; third, the accuracy of the prior description; fourth, the level of certainty
       demonstrated by the witness at the confrontation; and fifth, the length of time
       between the crime and confrontation.).
28
   Id.
29
   Def.‘s PCR Motion, Sep. 15, 2015, p. 82-88.
30
   Atkinson v. State, 778 A.2d 1058, 1062 (Del. 2001).
                                                 7
to cross-examine a witness is a tactical decision left to counsel.31 A defendant

challenging counsel‘s decisions related to cross-examination ―has the burden of

supplying precisely what information ‗would have been obtained had [counsel]

undertaken the desired investigation‘ and how this information would have

changed the result.‖32           Worley has failed to establish that Trial Counsel‘s

performance fell below an objective standard of reasonableness. Instead, Trial

Counsel appropriately asked questions that called into question the credibility of

Green and the two eyewitnesses, particularly with respect to their identifications.

Further, to the extent that Trial Counsel did not ask questions that Worley

considers probative of credibility, Trial Counsel had a reasonable strategy.

Specifically, Trial Counsel‘s strategy was rooted in an appropriate decision to

refrain from asking questions to which Trial Counsel could not have known the

answer before trial and to respectfully and carefully cross-examine Green, a

sympathetic victim.

          Third, Worley argues that Trial Counsel was ineffective for failing to request

a more detailed eyewitness identification jury instruction and cites New Jersey‘s

instruction as a more appropriate model. The instruction given to the jury in

Worley‘s trial was a standard identification instruction and adequately instructed



31
     See Outten v. State, 720 A.2d 547, 557 (Del. 1998).
32
     Id. (internal citations omitted).
                                                  8
the jury on how it should consider the witnesses‘ testimony.33 Accordingly, Trial

Counsel was not ineffective when he did not request a different instruction.

       Finally, Worley contends that Trial Counsel was ineffective for failing to

consult with and present expert testimony on eyewitness identification.                        Trial

Counsel made a reasonable tactical decision to forego the use of an identification

expert in order to focus his efforts on creating reasonable doubt about Worley‘s

guilt.34   Moreover, assuming arguendo that Trial Counsel‘s performance was

unreasonable, Worley has failed to establish prejudice under Strickland such that

the outcome would have been different.                   Importantly, Trial Counsel cross-

examined the witnesses regarding the reliability of their identifications and ability

to perceive Worley during the attack.

V. CONCLUSION

       Worley has failed to demonstrate that Trial Counsel was ineffective under

the Strickland standard. The fundamental legality, reliability, integrity and fairness

of the proceedings leading to Worley‘s convictions and sentencing are sound.


33
   Bullock v. State, 775 A.2d 1043, 1047 (Del. 2001)(internal citations omitted)(―‗As a general
rule, a defendant is not entitled to a particular instruction, but he does have the unqualified right
to a correct statement of the substance of the law.‘ And ‗[w]hile ‗some inaccuracies and
inaptness in statement are to be expected in any charge,‘ this Court will reverse if the alleged
deficiency in the jury instructions ‗undermined . . . the jury‘s ability to intelligently perform its
duty in returning a verdict.‘‖).
34
   See, e.g., Jackson v. State, 770 A.2d 506, 513 (Del. 2001) (. . . ―‗[T]he Court concludes that
counsel made a reasonable tactical decision to forgo such testing in order to focus their efforts on
creating a reasonable doubt about [defendant‘s] guilt.‘‖).

                                                 9
     NOW, THEREFORE, on this 9th day of March 2016, Defendant Robert

Worley’s Motion for Postconviction Relief is hereby DENIED.

     IT IS SO ORDERED.

                            Andrea L. Rocanelli
                            _____________________________________
                            The Honorable Andrea L. Rocanelli




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