           IN THE SUPREME COURT OF THE STATE OF DELAWARE


TYRONE A. REDDEN,                      §
                                       §      No. 529, 2015
      Defendant Below-                 §
      Appellant,                       §
                                       §      Court Below:
             v.                        §      Superior Court of the
                                       §      State of Delaware
STATE OF DELAWARE,                     §
                                       §      Cr. I.D. No. 0701015161
      Plaintiff Below-                 §
      Appellee.                        §

                          Submitted:   October 5, 2016
                          Decided:     October 27, 2016

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

Upon appeal from the Superior Court. AFFIRMED.

John A. Barber, Esquire, Law Office of John A. Barber, Wilmington, Delaware for
Appellant.

Gregory E. Smith, Esquire, Department of Justice, Wilmington, Delaware for Appellee.



VALIHURA, Justice:
                               I.       INTRODUCTION

       Defendant below, Tyrone Redden (“Redden”), seeks review of the Superior

Court’s September 1, 2015 Order1 denying his Amended Motion for Postconviction

Relief (the “Amended Motion”). At issue in this appeal are two out-of-court statements

introduced at Redden’s trial pursuant to 11 Del. C. § 3507. In his Motion, Redden argued

that his trial counsel was ineffective for failing to object to the Section 3507 statements

after the State failed to ask each witness whether his or her out-of-court statement was

truthful. Redden further argued that his appellate counsel was ineffective for failing to

raise the same issue on direct appeal. The Superior Court denied the Amended Motion,

holding that Redden’s claims were procedurally barred under Rule 61(i)(1) and (i)(2).

       As set forth below, we agree with the Superior Court that Redden’s claims are

procedurally barred and therefore AFFIRM the Superior Court’s Order denying Redden’s

Motion.

           II.       FACTUAL AND PROCEDURAL BACKGROUND2

       Redden’s convictions stem from a series of burglaries and attempted burglaries

that occurred at four homes between January 3 and January 17, 2007.3 During these

incidents, the suspects were seen in a white minivan and a Chrysler 300. On January 17,

2007, Redden was arrested when the police stopped a Chrysler 300 matching the



1
  State v. Redden, 2015 WL 5168123 (Del. Super. Sept. 1, 2015) [hereinafter Redden IV, 2015
WL 5168123, at __”].
2
  Although additional evidence was presented at Redden’s trial, this Opinion details only those
facts necessary to understanding the witness testimony at issue in this appeal.
3
  See Redden v. State, 2009 WL 189868, at *1 (Del. Jan. 14, 2009) [hereinafter “Redden I, 2009
WL 189868, at __”].
                                              2
description of the suspects’ vehicle.4 In the glove box, police found a rental agreement

signed by Redden and his sister, Desarie Dennis (“Dennis”).

       At trial, Dennis testified that she rented a Chrysler 300 at Redden’s request.

However, she claimed not to remember whether she also rented a white minivan, even

after being shown a receipt with her signature on it. The State introduced Section 3507

testimony concerning a statement Dennis made to the police that she had rented both

vehicles. Dennis then testified that she did in fact rent the minivan. Redden’s trial

counsel challenged the voluntariness of Dennis’s statement,5 but not the State’s failure to

ask Dennis whether her statement to the police was truthful.

       Another witness, Eugene Lai (“Lai”), testified that he woke from a nap to discover

a man attempting to pry open his door while another man stood nearby. Lai further

testified that the police presented him with a photo array, on which he identified one of

these men as Redden’s codefendant, James Ross (“Ross”). The State introduced the prior

identification pursuant to Section 3507 without eliciting testimony concerning the prior

statement’s truthfulness. Redden’s counsel did not object.

       On October 24, 2007, a jury found Redden guilty of three counts of Burglary

Second Degree, three counts of Theft Over $1,000, three counts of Conspiracy Second

Degree, one count of Possession of Burglar’s Tools, one count of Theft of a Firearm, and

one count of Possession of a Deadly Weapon by a Person Prohibited. On December 21,


4
  Id. at *1.
5
   A79 (Tr. 177:17-20) (“I’m pretty sure I heard her say it was not a voluntary statement.
Therefore, I don’t think it complies with the 3507 requirements and he shouldn’t be allowed to
introduce the statement at this point.”).
                                              3
2007, the State moved to declare Redden a habitual offender. On January 25, 2008, the

Superior Court declared him a habitual offender and sentenced him to 43 years of

incarceration.

       On January 14, 2009, this Court affirmed Redden’s convictions.6 On June 3,

2009, Redden filed a motion for a new trial, which the Superior Court denied. 7 On

appeal, this Court found that the Superior Court addressed only one of Redden’s two

claims and remanded for a ruling on the second claim. On remand, the Superior Court

found the second claim to be without merit,8 and this Court affirmed on June 25, 2010.9

On August 20, 2013, Redden filed a pro se motion for postconviction relief. On July 10,

2014, Redden’s court-appointed counsel filed the Amended Motion.10 The Superior

Court denied the Amended Motion on September 1, 2015,11 and this appeal followed.

                                   III.      ANALYSIS

                              A.      Contentions of the Parties

       Redden contends that the Superior Court erred in holding that his claims were

procedurally barred under Rule 61(i)(1) and (i)(2), arguing that these procedural bars do

not apply pursuant to former Rule 61(i)(5)’s “miscarriage of justice” exception. 12 He

argues that this exception contemplates his ineffective assistance of counsel claims. The

6
  Redden I, 2009 WL 189868, at *2.
7
   See Redden v. State, 2010 WL 2560041, at *1 (Del. June 25, 2010) [hereinafter Redden III,
2010 WL 2560041, at __”].
8
   Redden v. State, 2010 WL 893685, at *2 (Del. Super. Jan. 12, 2010) [hereinafter Redden II,
2010 WL 893685, at __”], aff’d, Redden III, 2010 WL 2560041.
9
  Redden III, 2010 WL 2560041, at *2.
10
   Redden IV, 2015 WL 5168123, at *1.
11
   Id. at *3.
12
    The Superior Court did not address whether Rule 61(i)(5)’s “miscarriage of justice” exception
applied. See Redden IV, 2015 WL 5168123.
                                               4
State responds that ineffective assistance of counsel alone does not satisfy the exception

set forth in former Rule 61(i)(5). Alternatively, the State argues that Redden failed to

demonstrate ineffective assistance of counsel.

                            B.      Standard and Scope of Review

       This Court reviews a trial court’s denial of a motion for postconviction relief for

abuse of discretion.13 “Constitutional questions and other questions of law are reviewed

de novo.”14

              C.    Redden’s Claims Are Procedurally Barred Under Rule 61

       Before reaching the merits of Redden’s Amended Motion, this Court must

determine whether his claims are procedurally barred, applying the version of Superior

Court Criminal Rule 61 that was in effect at the time Redden filed his pro se motion.15

       The Superior Court determined that Redden’s Amended Motion was time barred

under Rule 61(i)(1) and procedurally barred under Rule 61(i)(2). 16 Pursuant to Rule

61(i)(1), a motion for postconviction relief must be filed within one year after the

judgment of conviction is final, which occurs “when the Supreme Court issues a mandate

or order finally determining the case on direct review.” 17 Redden filed his pro se motion




13
   Hoskins v. State, 102 A.3d 724, 728 (Del. 2014) (citing Neal v. State, 80 A.3d 935, 941 (Del.
2013)).
14
   Id. (italics added) (citing Ploof v. State, 75 A.3d 811, 820 (Del. 2013)).
15
   See Bradley v. State, 135 A.3d 748, 757 n.24 (Del. 2016) (noting that this Court applies the
version of Rule 61 in effect at the time a defendant files a motion for postconviction relief). All
citations to Rule 61 in this Opinion refer to the version in effect on August 20, 2013, the date
Redden filed the pro se motion. See A13, at DI 131.
16
   Redden IV, 2015 WL 5168123, at *2.
17
   Del. Super. Ct. Crim. R. 61(m)(2).
                                                5
on August 20, 2013, more than a year after his conviction became final.18 Accordingly,

the Superior Court properly held that the Amended Motion was time barred.

       Rule 61(i)(2) bars consideration of issues asserted in subsequent motions for

postconviction relief that were not asserted in a prior motion.19 The Supreme Court

denied Redden’s 2009 motion for a new trial under Rules 33 and 61.20 Therefore, the

Superior Court determined that the Amended Motion was Redden’s second motion for

postconviction relief.21   Because Redden did not raise the ineffective assistance of

counsel claims in his 2009 motion, these claims are now barred under Rule 61(i)(2).

      D.     Redden Has Not Demonstrated a Colorable Claim That There Was a
                  Miscarriage of Justice Pursuant to Rule 61(i)(5)

       At the time of Redden’s Amended Motion, Rule 61(i)(5) provided that the bars to

relief in Rule 61(i)(1)-(3) did not apply “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.”22   The petitioner “bears the burden of proving the existence of a

constitutional violation under Rule 61(i)(5).”23

       “A meritorious ineffective assistance of counsel claim that demonstrates a




18
   A13, at DI 131. This Court’s mandate issued on February 6, 2009.
19
   Del. Super. Ct. Crim. R. 61(i)(2).
20
   Redden III, 2010 WL 2560041, at *1.
21
   Redden IV, 2015 WL 5168123, at *2.
22
   Del. Super. Ct. Crim. R. 61(i)(5).
23
   Summers v. State, 2014 WL 3559688, at *1 (Del. July 17, 2014) (citing Gattis v. State, 955
A.2d 1276, 1290 (Del. 2008)).
                                             6
constitutional violation may be considered an exception under Rule 61(i)(5).”24                To

demonstrate ineffective assistance of counsel, a defendant must satisfy two requirements.

First, the defendant must establish that his or her “counsel’s representation fell below an

objective standard of reasonableness.”25          Doing so requires overcoming a “strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’”26

Second, the defendant must demonstrate a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”27 A

reasonable probability requires more than a showing “merely that the conduct ‘could

have or might have or it is possible that [it would have]’ led to a different result.”28 “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.”29

       Here, any failure of Redden’s trial counsel to object to the introduction of Dennis

and Lai’s Section 3507 statements does not satisfy Rule 61(i)(5)’s “miscarriage of

justice” exception. Section 3507 provides that “the voluntary out-of-court prior statement


24
   Flowers v. State, __ A.3d __, 2016 WL 6196304, at *5 (Del. Oct. 21, 2016) (en banc)); see
Younger v. State, 580 A.2d 552, 555 (Del. 1990) (suggesting that the Court would consider an
ineffective assistance of counsel claim collaterally if “a constitutional violation has occurred”);
cf. State v. Wilmer, 2003 WL 751181, at *5 (Del. Super. Feb. 28, 2003) (“Because [the
defendant] cannot establish that he received ineffective assistance of counsel, Rule 61(i)(5) does
not apply . . . .”).
25
   Strickland v. Washington, 466 U.S. 668, 688 (1984).
26
   Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
27
   Id. at 694.
28
   Neal, 80 A.3d at 942 (quoting Ploof, 75 A.3d at 867).
29
   Strickland, 466 U.S. at 694.
                                                7
of a witness who is present and subject to cross-examination may be used as affirmative

evidence with substantive independent testimonial value.”30 The statement is admissible

“regardless of whether the witness’ in-court testimony is consistent with the prior

statement or not.”31 Such statements are also admissible irrespective of the witness’s

response to the prosecutor’s foundational questions.32 Further, there is a distinction

between defense counsel’s right to insist that the State establish the truthfulness of the

statement and defense counsel’s right to “make a professional judgment not to object” if

the State fails to do so.33

       At Redden’s trial, the State did not ask either Dennis or Lai whether their prior

out-of-court statements were truthful,34 and Redden’s trial counsel did not object on that

basis. Redden’s trial counsel stated that he could “see why [he] wouldn’t have[,]”

because Dennis’s testimony did not appear credible, and the prosecutor “would have had

a field day” if Dennis testified that her statement to the police was untruthful.35 As to

Lai’s statement, trial counsel, although his current memory of the testimony had faded,

noted that Lai’s testimony “appears to have been credible” and that he “probably figured

there was nothing to gain” by objecting. In addition, Lai testified that he “basically just



30
   11 Del. C. § 3507(a).
31
   11 Del. C. § 3507(b).
32
   See Flowers, 2016 WL 6196304, at *4 (“Our decision in Moore explained, ‘[u]nder § 3507,
there is no requirement that the witness either affirm the truthfulness of the out-of-court
statement, or offer consistent trial testimony.’” (quoting Moore v. State, 1995 WL 67104, at *2
(Del. Feb. 17, 1995))).
33
   Id. at *3.
34
   A78 (Tr. 175:13-177:9); A141-42 (Tr. 216:11-218:7).
35
   Aff. of Jerome M. Capone at B2, State v. Redden, I.D. No. 0701015161 (Del. Super. Dec. 5,
2014), available at B1-3.
                                              8
told [the police] the story right now that I told you.” 36 There is no basis on this record to

doubt that Redden’s trial counsel’s failure to object was “within the wide range of

reasonable professional assistance[.]”37 As such, trial counsel’s conduct was objectively

reasonable.

       Additionally, Redden has not demonstrated a reasonable probability that an

objection to the Section 3507 statements would have changed the outcome of his trial.

Objecting would have resulted in the State inquiring about the truthfulness of the prior

statements, but the statements would have been admissible regardless of whether Dennis

and Lai denied or affirmed their truthfulness. Accordingly, an objection at trial would

not have affected the evidence heard by the jury.

       Similarly, Redden has not demonstrated that his appellate counsel was ineffective.

Redden’s appellate counsel stated that he “used [his] best judgment, and strategic

reasoning, in selecting the issues most likely to succeed on appeal.”38 He further noted

that raising a claim reviewed only for plain error “can have the effect of weakening what

otherwise may be strong arguments.”39         This appellate strategy was not objectively

unreasonable,40 particularly given the rigor of plain error review.41




36
   A141 (Tr. 216:16-17).
37
   Strickland, 466 U.S. at 689.
38
   Aff. of Andrew W. Gonser at B4, State v. Redden, No. 0701015161 (Del. Super. Mar. 18,
2015), available at B4-5.
39
   Id. at B5.
40
   See Flamer v. State, 585 A.2d 736, 758 (Del. 1990) (“A strategy, which structures appellate
arguments on ‘those more likely to prevail, far from being evidence of incompetence, is the
hallmark of effective appellate advocacy.’” (quoting Smith v. Murray, 477 U.S. 527, 536,
(1986))).
                                              9
       Because Redden has not established ineffective assistance of trial or appellate

counsel, he has not demonstrated a “colorable claim that there was a miscarriage of

justice” such that Rule 61’s bars to relief should not apply. Accordingly, the Superior

Court properly held that his Amended Motion was barred under Rule 61(i)(1) and (i)(2).

                                IV.        CONCLUSION

       For the foregoing reasons, Redden’s claims are procedurally barred by Rule 61.

Accordingly, we AFFIRM the Superior Court’s Order.




41
   See Hoskins, 102 A.3d at 735 (“Under the plain error standard of review, the error must be so
clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial
process.” (citations and internal quotation marks omitted)).
                                               10
