IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
v. § Cr. ID No. 0603015418A
ANTHONY WHITE, §
Defendant. §

Submitted: September 19, 2018
Decided: November 21 , 2018

ORDER
AND NOW TO WIT, this 21St day of November, 2018, upon consideration
of the Defendant’s Third Motion for Postconviction Relief, the State’s Response, the
Commissioner’s Report and Recommendation, Defendant’s objections, and de novo
review of the record in this case, IT APPEARS THAT:
1. In 2007, a jury found Anthony White guilty of Attempted Murder First
Degree and Possession of a Firearm During the Commission of a Felony.l The

Delaware Supreme Court affirmed White’s conviction on September 5, 2008.2

 

l D.I. 63.

2 White v. State, 2008 WL 4107980 (Del. 2008) (affirming conviction on direct appeal). In this
case, the Delaware Supreme Court found the following facts: On March 15, 2006,\Jaywann Tucker
and his friend, Ahmand Phoenix, were hanging out, after school, on the street. Tucker saw Qy-
Mere Maddrey and decided to rob him. During the robbery, Tucker held a gun to Maddrey’s face
while taking Maddrey’s cell phone and marijuana Afterward, Maddrey called his friend, White,
and told him about the robbery. Approximately a half-hour later, Maddrey and White confronted
Tucker and PhoeniX and asked Tucker to return Maddrey’s phone, but Tucker said he no longer
had the phone. At this point, White pulled out a gun and started shooting at Tucker, who ran
behind a building. White chased Tucker behind the building and shot Tucker in the face, left
shoulder and left foot. Id. at *1-2.

2. On January 14, 2009, White filed his first Motion for Postconviction Relief
(“First Motion”) under Superior Court Criminal Rule 61 (“Rule 61”). White alleged
claims of ineffective assistance of counsel, prosecutorial misconduct and trial judge
errors. The Superior Court denied the First Motion. On May 4, 2010, the Supreme
Court affirmed the Superior Court’s judgment,3 noting that, in addition to the eye-
witness testimony of Tucker, Maddrey and Phoenix, the State presented to the jury
the following evidence: (1) a surveillance camera videotape, (2) gun casings, (3)
testimony from the chief investigating officer, Detective Curley, and (4) the police
evidence technician’s testimony.4 The record reflects that Tucker, Maddrey and
PhoeniX’s trial testimony contradicted their prior statements to Detective Curley
about the shooting of Tucker. Tucker told Curley he did not know who shot him
(Tucker). Maddrey told Curley that he (Maddrey) shot Tucker. PhoeniX told Curley
that White shot Tucker. At trial, Tucker and Maddrey both testified that White shot
Tucker and Phoenix testified that he did not witness the shooting and did not know
anything about the shooting. The Supreme Court noted that “not surprisingly,
White’s defense strategy focused on attacking the credibility of Tucker, Maddrey,

and PhoeniX. . .”5 and trial record shows that defense counsel thoroughly examined

 

3 White v. State, 2010 WL 1781021 (Del. 2010).
4 Ia'. at *l.
5 Id.

their contradictions, biases, motives and potential misrepresentations to the police
or at trial.6

4. On August 16, 2010, White filed his second Motion for Postconviction
Relief (“Second Motion”) under Rule 61. In his Second Motion, White challenged
certain communications between the trial judge and the jury, and the introduction of
contradictory statements of a trial witness. The Superior Court denied the Second
Motion and the Supreme Court affirmed7

5. Now before the Court is White’s third Motion for Postconviction Relief
(“Third Motion”),8 filed on November 6, 2017. Four months later, White filed a
Supplemental Report and Reasons for Relief.9 Together, White’s Third Motion
asserts the following claims: (1) the Superior Court lacked jurisdiction to convict
him of Attempted First Degree Murder and he cannot be convicted of a “non-crime;”
(2) newly discovered evidence shows White’s innocence of the crimes for which he
is convicted; and (3) Strickland/Braa’y claims for ineffective assistance of counsel

and Brady violations. '°

 

6 See Trial Tr., D.I. 93, at 43-46, 68-74, Mar. 8, 2007 (Tucker cross-examination and re-direct);
Id. at 119-145 (Phoenix and Curley direct examinations); See also Trial Tr., D.I. 94, at 8-22,
Mar. 9, 2007 (Phoenix and Curley direct and cross examinations); Id. at 38-76 (Maddrey direct,
cross and re-direct examination).

7 Ia'.

8 D.I. 134.

9 D.I. 139.

10 D.I. 134, 139.

6. Upon the Court’s request, White expanded on his claim of new exculpatory
evidence by submitting the followingl l:

(1) an unsigned/unsworn statement summarizing a purported
interview of Qy-Mere Maddrey (“Maddrey Summary”) conducted by
an investigator on April 13, 2017. The Investigative Insert states that
Maddrey is the uncle of White’s child, Maddrey admits to shooting
Tucker, and Maddrey changed his testimony at trial because of pressure
from law enforcement;

(2) an unsigned/unsworn summary which purports to be a
statement of Jeree “Re-Re” Richardson to Curley (“Richardson
Statement”), which purports that Richardson witnessed Tucker rob
Maddrey;

(3) James Anthony Brown’s Affidavit of Updated Statement
(“Brown Affidavit”) dated March 15, 2018. Brown testifies that he
dropped Maddrey off at the police station when Maddrey turned
himself in and confessed;

(4) Zekita Ann Maddrey’s Affidavit of Updated Statement

(“Zekita Affidavit”) dated March 15, 2018. Zekita testifies that she is

 

l]D.I.140,141,142,143).

Maddrey’s older sister and the mother to White’S child, She claims that

Maddrey confessed to the crime.

7. White further argues that with respect to State witnesses Maddrey, Tucker
and Phoenix: (1) trial counsel did not attack the credibility of the witnesses; (2) all
three witnesses are pathological liars; and (3) Maddrey confessed and later recanted,
but White was denied his right to challenge Maddrey’s change of testimony at trial.‘2

8. The State filed a Response to White’s Third Motion arguing that it should
be denied as untimely, and/or subject to certain procedural bars, and/or denied on
the merits.13

9. Pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62, the
Third Motion was referred to a Superior Court Commissioner for proposed findings
of fact and recommendations (“the Report”).l4 On September 1`3, 2018, the
Commissioner issued the Report recommending summary dismissal of White’s
Third Motion.15

10. On September 19, 2018, White submitted an Exception to

Commissioner’s Report16 and two amendments.]7 Because the initial Exception was

 

12 See D.I. 134, at 9-12; D.I. 139, at 4-5.

13 D.I. 148.

14 D.I. 149.

15 State v. White, 2018 WL 4405835 (Del. Super. 2018).

16 D.I. 153.

17 D.I. 155, 157. The amendments are dated September 27th and October 15th, respectively. In
addition to White’s appellant counsel’s filings, White filed pro se Objections to Commissioners
Report and Recommendations that White’s Postconviction Motion Be Denied. D.I. 154.

5

filed within 10 days of the Report, the Court must conduct a de novo review of “those
portions of the report” objected to.18 The judge “may accept, reject, or modify, in
whole or in part, the findings of fact or recommendations made by the
Commissioner.”19

11. The Court need not consider the merits of White’s Third Motion because
it does not overcome the Rule 61 procedural bars.20

12. Rule 61(i)(1) provides that a motion for postconviction relief must be
filed within one year of a final judgment of conviction.21 A judgment of conviction
becomes final, in relevant part, when “the defendant files a direct appeal” to the
Delaware Supreme Court and the Court “issues a mandate or order finally

determining the case on direct review.”22 White’s judgment was final in 2008.23 The

Third Motion was filed nine years after White’s final judgment.

 

However, the Court will not consider the pro se filing because White is represented by counsel.
See Matter of Haskins, 551 A.2d 65, 66 (Del. 198 8) (explaining that a criminal defendant cannot
have “hybrid representation,” which occurs when the defendant is represented by counsel and also
represents his or her self).

18 See Super. Ct. Crim. R. 62(a)(5); see also State v. Williams, 2018 WL 3211962, at *4 (Del.
Super. 2018).

19 Super. Ct. Crim. R. 62(a)(5)(iv).

20 The Court must first address Rule 61(d) before addressing the merits of White’s Third Motion.
See Super. Ct. Crim. R. 61; Younger v. State, 580 A.2d 552, 554 (Del. 1990). If the Court
determines, after review of the Third Motion and the record of prior proceeding, that White’s
motion is procedurally barred, then the Court may summarily dismiss the motion. See Super. Ct.
Crim. R. 61(d)(5).

21142’. 61(i)(1).

22 Id. 61(m).

23 White v. State, 2008 WL 4107980, at *1 (Del. 2008).

6

13. Rule 61(i)(2) bars successive motions unless the motion satisfies the
pleading standards of Rule 61(d)(2)(i)-(ii).24 To overcome this procedural bar,
White is required to plead with particularity either:

(i) new evidence exists that creates a strong inference that the movant

is actually innocent of the acts for which he was convicted; or

(ii) a new rule of constitutional law retroactively applies to the case on

collateral review by either the United States or Delaware Supreme

Court and the new law invalidates the movant’s conviction.25

14. White argues that Rambo v. State,26 creates constitutional law establishing
that Attempted Murder First Degree is a “non-crime.” White does not meet the
pleading standard of Rule 61(d)(2)(ii) because Rambo does not apply to this case
and it does not invalidate White’s conviction. In Rambo, the Court held that
Attempted Felony Murder is not a recognized crime in Delaware. A person cannot
attempt a Felony Murder because attempt requires intent and a person cannot attempt

to commit a crime that can only be recklessly committed.27 In Rambo, the defendant

 

24 Super. Ct. Crim. R. 61(i)(2).

25 ld- (d)(Z)(i)-(ii)-

26 939 A.2d 1275 (Del. 2007).

27 Under Delaware law, the crime of attempt is defined as (1) intentionally engaging in conduct
which would constitute the crime if the attendant circumstances were as the person believes them
to be; or (2) intentionally does or omits to do anything which, under the circumstances as the
person believes to be a substantial step in a course of conduct planned to culminate in the
commission of the crime by the person. Rambo, 939 A.2d at 1280-81 (citing 11 Del. C. § 531)
(emphasis added).

7

was convicted of Attempted Felony Murder under 11 Del. C. § 636(a)(2) for the
reckless murder of a victim during a robbery. In contrast, White was convicted of
Attempted Murder First Degree under 11 Del. C. § 636(a)(1).28 At trial, the State’s
evidence demonstrated that White “attempted to ‘intentionally cause[] the death of
another person,’ _ Jaywann Tucker, by repeatedly shooting him with a firearm.”29
15, White’s case is similar to Sykes v. State,30 not Rambo. In Sykes, the Court
rejected the defendant’s argument, which was based on Rambo, that his plea to
Attempted Murder First Degree was invalid and the Superior Court lacked
jurisdiction to accept his plea. The Court held that the Rambo decision was
inapplicable in Syke’s case because defendant pled guilty to Attempted intentional
Murder in the First Degree - an offense within the jurisdiction of the Superior Court.
White, like the defendant in Sykes, was convicted of Attempted intentional Murder,
not Attempted Felony Murder. For the above reasons, Rambo does not support

White’s argument that attempted intentional murder is a non-crime.

 

28 A person is guilty of murder in the first degree when: the person intentionally causes the death
of another person. See 11 Del. C. § 636(a)(1). Murder first degree is an intentional crime and
felony murder first degree is a reckless crime. The difference is that a felony murder requires the
defendant to recklessly murder another during the commission of an independent crime.
Comparatively, murder first degree and attempted murder require the defendant’s conduct to be
intentional when killing or attempting to kill another.

29 D.I. 148, at 12. See also D.I. 98, at 5:16-7:11 (jury instructions required prosecution to prove
White intentionally tried to murder Tucker); D.I. 90.

311 2018 WL 1410696 (Del. 2018).

8

16. Next, this Court turns to Rule 61(d)(2)(i). In State v. Flowers,31 the Court
followed the federal pleading standard to determine the validity of a claim based on
new evidence. Evidence is new when it “was not available at the time of trial and
could not have been discovered earlier through the exercise of due diligence. ...”32
To establish a valid claim, the new evidence must show that it is “more likely than
not that no reasonable juror would have convicted” the defendant.33 To determine
the validity of a new evidence claim, the Court considers “all the evidence, old and
new, incriminating and exculpatory, without regard to whether it would necessarily
be admitted. . .at trial.”34 In this case, the evidence provided by White is not new
evidence. The Maddrey and Richardson35 Summaries are not reliable or credible.
Maddrey’s purported statements to a private investigator are the same statements

that were known prior to trial and were thoroughly examined at trial.36 The Brown

 

31 2018 WL 1169644 (Del. Super. 2018).

32 Ial. at *1.

33 Id

34 Id

35 In White’s First Motion, the Supreme Court dealt with the Richardson testimony. See White v.
State, 2010 WL 1781021, at *3 (Del. 2010). The Court explained that even if Richardson testified
that Maddrey shot Tucker, White still failed to show that the trial result would have been different
The most recent assertion does not provide anything to change the result of the trial or the Court’s
decision; Richardson’s testimony would merely support the undisputed fact that Tucker robbed
Maddrey.

36 White’s defense counsel thoroughly and zealously examined Maddrey’s confession and
renunciation. The assertion that Maddrey’s confession is new evidence unavailable at trial is
baseless because, at trial, White had a full and fair opportunity to present evidence to the jury and
attack the credibility of witnesses.

9

and Zekita Affidavits are inconsistent with the trial record and unreliable37 because
Maddrey’s truthfulness and statements to police were thoroughly explored at trial.38
Furthermore, White does not assert that the testimony of Brown and Zekita was
unavailable prior to trial or unable to be discovered.

17. Because Maddrey confessed to the shooting prior to trial and was
questioned on direct and cross examination about his statements, his “new”
statement is not a post-trial recantation and the Court need not address White’s
argument that Blankenship v. State,39 applies. However, assuming arguendo, that
Maddrey’s statement is authenticated and a recantation, White fails to meet the
Blankenship standard. Under Blankenship, the defendant must prove: (1) that the
Court is reasonably well satisfied that a material witness provided false testimony,
(2) that without the testimony the jury might have reached a different conclusion,
and (3) that the movant was taken by surprise at trial by the false testimony and was

unable to meet it or did not know of its falsity until after trial.40 Here, the outcome

 

37 Zekita states that Maddrey was robbed and pistol whipped the day before the shooting, that
Maddrey robbed Tucker the day of the shooting, came home and called White, who picked
Maddrey up with his car. Her statements about the confrontation are contradicted by the
surveillance video. See D.I. 142. Brown states that Maddrey pulled the gun and shoot Tucker.
D.I. 143.

38 Furthermore, the affidavits are unreliable, inconsistent, and are provided eight (8) years too late
without justification Zekita Maddrey stated that she did not have an answer for not coming
forward sooner and Brown’s excuse is he wanted to focus on family instead.

39 447 A.2d 428 (Del. 1982) (adopting the Larrison test previously adopted under Delaware law
in Johnson v. State, 410 A.2d 1014 (Del. 1980)).

40 Ia'. at 433-34.

10

would not have been different because the victim (Tucker) identified White as the
shooter and there was additional evidence, including a video which depicts the crime
in real-time. In addition, the Court is reasonably well satisfied that Maddrey’s trial
testimony was not false.41 Maddrey’s testimony was independently corroborated by
evidence found at the scene of the crime and other witnesses’ testimony.42 Finally,
White was not surprised by the testimony of Maddrey because the transcript clearly
shows that White’s counsel confronted Maddrey about his prior confession during
the tria1.43 Therefore, even if the Maddrey Summary was credible and authenticated
it fails to meet the Blankenship standard. The evidence is not new because it was
known prior to trial, examined at trial, and the post-trial “recantation” is not credible
or authenticated

18. Next, the Court looks at Rule 61(i)(3) which prevents the consideration
of any claim not asserted in the proceedings leading up to the judgment of conviction

unless the movant (White) can show “cause for relief from the procedural default”

 

41 Ia'. at 434. See also Downes, 1999 WL 743629, at *8 (holding that its determination that the
witness truthfully testified precluded analyzing the remainder of the Blankenship test). In
Downes, the “alleged post-trial statement” of the witness was not dated or notarized and was just
a summary of defendant’s cross-examination at trial and closing arguments Downes, 1999 WL
743629, at *8.

42 See Blankenship, 447 A.2d at 434. In Blankenship, the Delaware Supreme Court affirmed the
Trial Judge’s discretion to believe the trial testimony was not false because the testimony was
“independently corroborated by the evidence found at the scene of the crime and by the victim’s
testimony as to the manner in which the crime was committed.” Ia'.

43 See Trial Tr., D.I. 93, at 43-46, 68-74, Mar. 8, 2007 (Tucker cross-examination and re-direct);
Ia'. at 119-145 (Phoenix and Curley direct examinations); See also Trial Tr., D.I. 94, at 8-22,
Mar. 9, 2007 (Phoenix and Curley direct and cross examinations); Ia'. at 38-76 (Maddrey direct,
cross and re-direct examination).

11

and “prejudice from violation of the movant’s rights.”44 In his Third Motion and
Supplemental Report, White raises ineffective assistance of counsel and Brady
violations for the second time.45 White fails to substantiate these claims and both
claims are procedurally barred because he fails to plead any exceptions that would
allow the Court to consider these claims.46 Furthermore, with respect to White’s
arguments about the State witnesses, the Delaware Supreme Court previously found
that White’s trial counsel’s defense strategy was to attack the credibility of Tucker,
Maddrey and Phoenix.47 The supplemental motion is devoid of any assertions that

White was unaware of the prior statements made by Tucker, Maddrey and Phoenix.

 

44 Super. Ct. Crim. R. 61(i)(3).

45 See White, 2010 WL1781021, at * 2.

46 State v. White, 2018 WL 4405835, at *4 (Del. Super. 2018). While White summarized
statements from potential witnesses, there is no explanation as to the form in which the statements
existed at the time of trial, if the statements were possessed by the State or that the State
intentionally withheld the statements during the discovery process. Any Brady violations should
have been dealt with at trial, on appeal, or through the post-conviction process. Additionally, in
White’s supplemental motion, he states that trial counsel was aware of or possessed the statements
of potential witnesses and alleged evidence prior to trial. See D.I. 139, 151. Under Rule 61(i)(3),
the claims White failed to assert previously arc now deemed waived

47 In White’s Amended Exception to Conimissioncr’$ Report (D.I. 57), he argues that relief should
be granted based on Fowler v. State, 2018 WL 4057249 (Del. 2018). White fails to meet the
pleading standard for written objections to the Report because the claim was not plead with
particularity See Super. Ct. Crim. R. 62(5)(ii). Assuming arguendo that the claim was plead with
particularity, Fowler does not apply to White’s motion. In Fowler, the court ordered a new trial
because the Jencks violations were not harmless error when combined with the credibility issue of
the State’s expert witness. See id. at *1-2. The court discovered post-conviction that the State
failed to provide the recorded statements of the four witnesses to the defense and the State’s expert
witness was arrested for Theft by False Pretense and Falsifying Business Records to Make or
Cause False Entry. Id. at *1. The unusual combination of the credibility issues of the expert and
inability of trial counsel to effectively impeach key witnesses with prior recorded statements
showed that the two major forms of evidence used to convict the defendant were not harmless
beyond a reasonable doubt. Id. at *9. White’s case is distinguishable from Fowler because unlike
the defendant in Fowler, White fails to claim that the State possessed recorded witness statements

12

19. Rule 61(i)(4) states that “[a]ny 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 barred.”48 White asserted ineffective assistance of counsel and Brady
violations in his First Motion and therefore those claims are barred.

20. White’s Third Motion is procedurally barred by Rule 61(i)(1)-(4). Thus,
White’s claims are not exempt from those procedural bars.

NOW THEREFORE, after careful and de novo review of the record in this
action, the Court adopts the Commissioner’s Report and Recommendation.
Defendant’s Motion for Postconviction Relief is SUMMARILY DISMISSED.

IT IS SO ORDERED.

°'h.._

Mresident Judge

 

and he does not claim that the State did not provide the statements. See D.I. 151. Furthermore,
the Supreme Court previously established that the contradictory statements of Tucker, Maddrey
and Phoenix were thoroughly examined at trial. See generally White v. State, 2010 WL 1781021
(Del. 2010). In sum, White fails to assert that the State did not provide Jencks statements

48 Super. Ct. Crim. R. 61(i)(4).

13

