         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 JERMAINE BOOKER,                     §
                                      §   No. 319, 2019
       Defendant Below,               §
       Appellant,                     §
                                      §
       v.                             §   Court Below–Superior Court
                                      §   of the State of Delaware
 STATE OF DELAWARE,                   §
                                      §   Cr. ID No. 1408017638 (N)
       Plaintiff Below,               §
       Appellee.                      §

                          Submitted: December 20, 2019
                          Decided:   March 4, 2020

Before SEITZ, Chief Justice; VAUGHN, and TRAYNOR, Justices.

                                 ORDER

      Upon consideration of the parties’ briefs and the record on appeal, it appears

to the Court that:

      (1)    The appellant, Jermaine Booker, appeals the Superior Court’s denial of

his first motion for postconviction relief under Superior Court Criminal Rule 61

(“Rule 61”). We find no merit to Booker’s appeal. Accordingly, we affirm the

Superior Court’s judgment.

      (2)    Booker was indicted in September 2014 on charges of attempted first

degree murder, possession of a deadly weapon during the commission of a felony

(“PDWDCF”), home invasion, first degree robbery, second degree burglary, and

misdemeanor theft. The charges arose from two separate incidents that occurred on
November 21, 2013, and January 2, 2014, respectively, at neighboring homes in

Wilmington. On November 21, 2013, the unoccupied residence of Drew Van Dyk

was burglarized. Several items were taken from Van Dyk’s home, including

multiple electronic devices, keys to his 1998 Subaru, the owner’s manual for the

Subaru, and an expired New Jersey license plate.        On January 2, 2014, the

neighboring home of John Warfield and Jacqueline Fiore was burglarized. Warfield

was not home at the time but Fiore was beaten unconscious by the intruder. The

attacker fled the scene in Fiore’s Lexus.

      (3)    On January 4, 2014, a New Jersey police officer on patrol in Newark,

New Jersey, observed a Lexus lose control and come to an abrupt stop. She saw the

two occupants of the vehicle—later identified as Booker and his cousin Kendall

Briscoe—exit the vehicle and walk away. The officer ran the New Jersey tag number

and learned that the Motor Vehicle Commission had no record of it. When the

officer attempted to engage Booker and Briscoe in conversation, the men fled. After

giving chase, Booker and Briscoe were apprehended and charged with receiving

stolen property and resisting arrest.

      (4)    A database search of the Lexus’s Vehicle Identification Number

revealed that the car was linked to a violent crime in Delaware. The car was towed

to Delaware and its contents inventoried. Several pieces of circumstantial evidence

tied Booker to the two burglaries, among them: (i) the expired New Jersey license


                                            2
plate had been stolen from Van Dyk’s garage; (ii) Booker’s fingerprint was

recovered from the expired New Jersey license plate; (iii) the owner’s manual for

Van Dyk’s Subaru was found in the bushes outside of the Fiore and Warfield

residence; (iv) Booker’s girlfriend told the police that she and Booker had dinner at

Red Lobster in Wilmington on January 2, 2014, and Booker told her he was going

to New Jersey to visit Briscoe; (v) surveillance video showed Booker and his

girlfriend having dinner and shopping in the vicinity of Red Lobster on January 2,

2014; (vi) EZ-Pass records documented the precise times that the transponder

associated with Fiore’s Lexus entered and exited the New Jersey Turnpike on

January 4, 2014; and (vii) Fiore’s blood was found on a pair of green Nike shoes that

were recovered from the vehicle.1 Witnesses vouched for the fact that Briscoe,

however, was in New Jersey—not Delaware—on January 2, 2014.2

       (5)     Following a jury trial in January 2016, Booker was convicted of first

degree assault (as a lesser-included offense of attempted first degree murder), home

invasion, first degree robbery, second degree burglary, and theft. The Superior Court

sentenced Booker to forty-four years of Level V incarceration, followed by




1
  Booker’s father testified at trial that the shoes were similar to a pair of shoes that he had given
Booker for Christmas in 2013.
2
  Booker, himself, admitted Briscoe was not in Delaware during a recorded prison phone call.
                                                 3
decreasing levels of supervision. This Court affirmed Booker’s convictions and

sentence on direct appeal.3

         (6)    In October 2017, Booker filed a timely pro se motion for postconviction

relief and a request for the appointment of counsel. The Superior Court granted

Booker’s motion for appointment of postconviction counsel, and the Office of

Conflict Counsel appointed counsel to represent him. Postconviction counsel later

moved to withdraw under Rule 61(e)(7), representing that, after a careful review of

the record, counsel had not identified any potential grounds for postconviction relief.

After considering the motion for postconviction relief, the State’s response to the

motion for postconviction relief, postconviction counsel’s motion to withdraw,

Booker’s response to postconviction counsel’s motion to withdraw, and Booker’s

reply to the State’s response to the motion for postconviction relief, the Superior

Court denied Booker’s motion for postconviction relief and granted postconviction

counsel’s motion to withdraw. Booker now appeals to this Court.

         (7)    On appeal, Booker argues that (i) he was denied effective assistance of

counsel because trial counsel (a) failed to introduce Briscoe’s prior allegedly

inconsistent statements and (b) failed to cross-examine Fiore and introduce into

evidence a video recording of her prior exculpatory statement; (ii) postconviction

counsel was ineffective for failing to argue that trial counsel was ineffective for


3
    Booker v. State 2017 WL 3014360 (Del. July 14, 2017).
                                                4
failing to ask for a lesser-included offense instruction for second degree conspiracy;

and (iii) the Superior Court committed plain error by failing to instruct the jury on

the elements of the lesser-included offense of second degree conspiracy.

       (8)    We review the Superior Court’s denial of postconviction relief for

abuse of discretion and review questions of law de novo.4 The Court must consider

the procedural requirements of Rule 61 before it addresses any substantive issue.5

Rule 61(i)(3) provides that any ground for relief that was not asserted in the

proceedings leading to the judgment of conviction is thereafter barred unless the

defendant can establish cause for relief from the procedural default and prejudice

from a violation of the defendant’s rights. Rule 61(i)(4) provides that any claim that

was previously adjudicated—whether in the proceedings leading to the judgment of

conviction, on appeal, in postconviction proceedings, or in a federal habeas corpus

proceeding—is thereafter barred.

       (9)    Booker’s claims of ineffective assistance of counsel are properly raised

for the first time in a motion for postconviction relief.6 In order to prevail on a claim

of ineffective assistance of counsel, a defendant must demonstrate that (i) trial

counsel’s representation fell below an objective standard of reasonableness, and (ii)



4
  Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
5
  Younger v. State, 580 A.2d 552, 554 (Del. 1990).
6
  Malloy v. State, 2011 WL 1135107, at *2 (Del. Mar. 28, 2011) (citing Duross v. State, 494 A.2d
1265, 1267 (Del. 1985).
                                               5
there is a reasonable probability that, but for counsel’s deficient performance, the

result of the proceeding would have been different.7 Although not insurmountable,

there is a strong presumption that counsel’s representation was professionally

reasonable.8

       (10) Booker first claims that defense counsel was ineffective for failing to

introduce Briscoe’s prior statement to police and prison phone calls because Briscoe

did not implicate Booker in those communications. Because Booker did not raise

this argument below, we will not ordinarily entertain it on appeal.9 In any event,

Booker’s claim is unavailing. Briscoe was an uncooperative witness for the State

and his testimony did not implicate Booker. The State introduced two prison calls

made by Briscoe in which he relayed purported admissions Booker made to him

regarding the charged crimes. The record reflects that trial counsel questioned

Briscoe about his ability—or inability—to communicate with Booker while in

prison, suggesting that Briscoe had fabricated Booker’s statements. Trial counsel

also explored Briscoe’s possible motivation for manipulating the State for his own

self-interest, noting that Briscoe had pending criminal charges and was aware that


7
  Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
8
  Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
9
  Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented for
review; provided, however, that when the interests of justice so require, the Court may consider
and determine any question not so presented.”); Delaware Elec. Coop., Inc. v. Duphily, 703 A.2d
1202, 1206 (Del. 1997) (“It is a basic tenet of appellate practice that an appellate court reviews
only matters considered in the first instance by a trial court. Parties are not free to advance
arguments for the first time on appeal.”).
                                                6
his phone calls were being recorded. “Whether to call a witness, and how to cross-

examine those who are called are tactical decisions.”10 A defendant challenging the

manner in which counsel conducted cross-examination of a witness has the burden

to show (i) precisely what information would have been obtained if counsel had

proceeded differently and (ii) how this information would have changed the result.11

Even assuming that counsel could have presented additional evidence to show that

Briscoe had not initially implicated Booker,12 Booker cannot show that this

information would have changed the result. Further evidence of Briscoe’s silence

on the issue of Booker’s guilt would have had little to no impact on the jury’s verdict:

we have already found that “there was more than sufficient circumstantial evidence

to prove that Booker committed” both the November 21, 2013 burglary and the

January 2, 2014 home invasion.13

       (11) Booker next argues, as he did below, that counsel was ineffective for

failing to cross-examine Fiore about—and introduce video of—her prior exculpatory



10
   Outten v. State, 720 A.2d 547, 557 (Del. 1998).
11
   Id.
12
   As noted, Briscoe was not a willing witness. On cross-examination, Briscoe stated, “Like what
you all want me to say? What do you all want me to tell you all that I can’t tell you all? I don’t
know nothing about nothing, except what I was doing. This is what I keep telling you all. … Look,
listen, what I know is what I know. The car was stolen, I got arrested in Newark with my little
cousin over there a while ago. He was going about his business, or whatever. I don’t know what
else – I don’t know nothing about no 3rd, no 2nd, no 1st, no nothing…. There ain’t nothing else
to talk about. I’m not going to answer no questions or nothing. You all already got what you all
got out of me.” App. to Answering Br. at B23.
13
   Booker, 2017 WL 3014360, at *4.
                                                7
“statement.” The record reflects that the chief investigating officer, Sergeant Justin

Breslin, unsuccessfully attempted to interview Fiore after the assault on January 2,

2014. At the time, Fiore was hospitalized in the intensive care unit at Christiana

Hospital and unresponsive. On January 22, 2014, Sergeant Breslin again tried to

obtain information from Fiore, who was still hospitalized and non-verbal. Although

she was not able to speak, Fiore responded to some questions posed by Sergeant

Breslin by giving a “thumbs up” or “thumbs down.” Sergeant Breslin testified at

trial that he had the following interaction with Fiore on January 22, 2014:

                I believe the first question was could she hear me, to which she
         gave a thumbs up.
                The next few questions were basic questions. Is your name
         Jacqueline? Give me a thumbs up. She gave me a thumbs up.
                The next question would have been, Is your last name Fiore, to
         which she gave me a thumbs up.
                About the fourth question was, Do you recall what happened to
         you, to which she gave a thumbs down.
                The next question would be, Do you recall who did this to you,
         and she gave no reply. There was no response, whatsoever.
                The next question was, I believe, Was the person that attacked
         you white, to which she replied with a thumbs up.
                The next question was, Was the person black, and she gave no
         response again.14

         Not only did the prosecution present the issue of Fiore’s “thumbs up”

identification to the jury, but trial counsel emphasized this point in his closing

argument.15 Fiore, herself, testified that she did not remember the incident, nor did


14
     App. to Opening Br. at A7.
15
     App. to Answering Br. at B24.
                                           8
she recall Sergeant Breslin speaking to her on either January 2 or January 22. Any

questioning of Fiore about the “identification” she made on January 22 would have

proved pointless. As for Booker’s complaint that counsel did not introduce a video

recording of Sergeant Breslin’s questioning of Fiore on January 22, the record does

not reflect that a video was made in the first place.16               Booker has failed to

demonstrate that counsel’s decision to not cross-examine Fiore fell below an

objectively reasonable standard17 and has also failed to substantiate an allegation of

actual prejudice.

       (12) Booker’s remaining claims are based on his theory that he was entitled

to a jury instruction on second degree conspiracy. Because this argument was not

raised below, we ordinarily would not entertain it.18              Moreover, the claim is

procedurally barred by Rule 61(i)(3) because it could have been, but was not, raised

on direct appeal and Booker has not—and could not—show cause for relief from the

procedural bar. Nevertheless, the argument is without merit. There was no legal

basis to support the Superior Court instructing the jury on second degree conspiracy.

Booker was not charged with conspiracy. The charge of conspiracy is a separate




16
   We imagine if a video of the severely incapacitated victim did exist, it would be highly
inflammatory.
17
   The Superior Court noted that any rational defense counsel would not have wanted to prolong
Fiore’s time on the witness stand in light of the severity of her injuries, from which she still
suffered acute pain at trial.
18
   Supra, n. 9.
                                               9
offense and requires proof of different elements than those elements in the principal

crime.19 A conspiracy charge is not a lesser-included offense of the principal

offense.20 In his reply brief, Booker asserts that second degree conspiracy is a lesser

included offense for all Class B felonies. This allegation simply has no merit.

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

Court is AFFIRMED.

                                               BY THE COURT:


                                               /s/ Collins J. Seitz, Jr.
                                                    Chief Justice




19
     Steele v. State, 151 A.2d 127, 130 (Del. 1959).
20
     See id.
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