           IN THE SUPREME COURT OF THE STATE OF DELAWARE


ARTHUR CARTER,                          §
                                        §     No. 58, 2017
      Defendant-Below,                  §
      Appellant,                        §     Court Below: Superior Court
                                        §     of the State of Delaware
      v.                                §
                                        §     Cr. ID. No. 1306020689 (N)
STATE OF DELAWARE,                      §
                                        §
      Plaintiff-Below,                  §
      Appellee.                         §

                          Submitted: November 1, 2017
                          Decided:   November 15, 2017

Before STRINE, Chief Justice; VALIHURA, and SEITZ, Justices.

                                       ORDER

      This 15th day of November, 2017 having considered the briefs and the record

below, it appears to the Court that:

      (1)    Arthur Carter was arrested for firing a gun into the air outside the home

of his pregnant girlfriend, Morlicea Capers, after an argument. Prior to trial, Ms.

Capers wrote letters to the court stating Carter did not threaten her or point a gun at

her, but Carter’s counsel did not call her as a witness. At trial, Carter and the State

stipulated that Carter was a person prohibited from possessing a firearm. The State

introduced evidence of 911 calls, Carter’s admission to the police, and testimony of

the police officer who interviewed Ms. Capers. The jury found Carter guilty of
possession of a firearm by a person prohibited, aggravated menacing, and possession

of a firearm during the commission of a felony. The court declared Carter an

habitual offender and sentenced him to thirty years at Level V. Carter filed a motion

for post-conviction relief arguing that his counsel was ineffective, but the Superior

Court denied the motion because Carter could not establish prejudice.

      (2)    Carter appeals three of the claims: his counsel’s failure to (a) sever the

person prohibited charge, (b) call Ms. Capers, and (c) object to the officer’s

testimony. We agree with the Superior Court that counsel’s stipulation to Carter’s

status as a person prohibited did not prejudice Carter because the judge gave limiting

instructions to the jury and the State did not unduly focus on the stipulation. Further,

his counsel’s choice not to call Ms. Capers was a reasonable tactical decision to

avoid her cross-examination and impeachment. And, the officer’s testimony did not

prejudice Carter because it was duplicative of other evidence. We therefore affirm.

      (3)    On June 22, 2013, Carter and Ms. Capers had an argument that resulted

in Ms. Capers’ uncle throwing Carter out of the house. Carter retrieved a gun from

his car and fired it into the air before driving away. Ms. Capers called 911, stating

Carter was outside with a gun. A young female in the house also called 911,

identifying Carter as the shooter after speaking with someone in the background.

Officer Tate was on the scene within minutes of the 911 calls and interviewed Ms.




                                           2
Capers about the events. The police apprehended and questioned Carter on June 27,

2013, and he admitted that he fired a gun into the air before fleeing.

       (4)    Before trial, Ms. Capers wrote letters to two judges explaining that she

asked repeatedly for the charges to be dropped, that Carter never pointed a gun at

her, and that she never felt threatened by him.1 Counsel was aware of the letters but

declined to call her as a witness. At trial, Carter’s counsel stipulated that he was a

person prohibited from carrying a firearm. The stipulation was entered into evidence

with limiting instructions to the jury that it was “irrelevant to [their] deliberations,”

and that they were not to “speculate as to the reason why he’s prohibited, nor

consider that fact as evidence of guilt.”2 Officer Tate testified about his interview

with Ms. Capers, recounting her testimony in which she identified Carter, described

their “physical altercation,” and explained that Carter fled the residence, returned

with a gun, and fired a shot into the air.3 The officer also stated that “[s]he was very

excited, very upset, agitated”4 and “definitely wanted [Carter] arrested.”5

       (5)    The jury found Carter guilty of aggravated menacing, possession of a

firearm by a person prohibited, and possession of a firearm during the commission

of a felony. The court declared him an habitual offender and sentenced him to thirty



1
  App. to Opening Br. at 52–57.
2
  Id. at 81–82.
3
  Id. at 69.
4
  Id. at 68.
5
  Id. at 69.
                                           3
years at Level V with decreasing levels of supervision. Carter appealed and this

Court affirmed on November 12, 2014.

       (6)     On June 28, 2016, Ms. Capers signed an affidavit that if Carter’s

counsel called her at trial, she would have testified that “Arthur never put [her] in

fear and that a gun was never pointed at [her].”6 On July 11, 2016, Carter filed a

motion for post-conviction relief, arguing that his counsel was ineffective for failing

to (a) sever the person prohibited charge, (b) file a motion in limine to exclude the

911 calls, (c) contact Ms. Capers as a defense witness, (d) object to the police

officer’s testimony as hearsay, and (e) at the appellate level, for failing to appeal the

denial of Carter’s motion for acquittal based on lack of evidence.

       (7)     First, the Superior Court found that stipulating to Carter’s status as a

person prohibited did not prejudice him because neither the indictment nor the

stipulation stated why he was prohibited, the jury was given instructions not to

consider the stipulation as evidence of guilt,7 and the State never emphasized the

prohibition or invited speculation as to why he was prohibited.8 Second, the court

found the girl’s 911 call did not prejudice Carter because it corroborated key

evidence and was highly probative due to the small number of witness statements.




6
  Id. at 205–06.
7
  State v. Carter, 2017 WL 237621, at *4 (Del. Super. Ct. Jan. 18, 2017).
8
  Id.

                                                4
In addition, the child’s emotions were not prejudicial because the call was brief and

the State stressed only the facts presented and not her emotional state.9 Third, the

court found Carter’s counsel was not ineffective for failing to call Ms. Capers

because it was a strategic decision to avoid her impeachment through cross-

examination concerning her relationship with Carter and the contradictions in her

prior statements. Fourth, the court found Carter was not prejudiced by his counsel’s

failure to object to the officer’s testimony recounting Ms. Capers’ statements as

hearsay because it was “duplicative of the non-testimonial, excited utterances made

by Ms. Capers and the child in their 911 calls.”10 Lastly, the court found Carter’s

appellate counsel was not ineffective for failing to raise the denial of his motion for

acquittal because the State presented circumstantial evidence sufficient for a rational

trier of fact to find Carter guilty beyond a reasonable doubt. The Superior Court

denied Carter’s motion on January 18, 2017, and this appeal followed.

       (8)    Carter appeals the Superior Court’s decision regarding three of his

claims, arguing the court abused its discretion by not finding his counsel ineffective

for failing to (a) sever the person prohibited charge, (b) contact Ms. Capers as a

potential witness, and (c) object to the officer’s testimony as inadmissible hearsay.

This court reviews a motion for post-conviction relief for an abuse of discretion.11


9
  Id. at *5.
10
   Id. at *8 (explaining that the testimony was “insignificant in light of more prominent, and
probative, evidence submitted in the case”).
11
   Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
                                              5
To establish that his counsel was ineffective, the defendant must show that his

performance was deficient, falling below a reasonable standard of care, and the

defendant was prejudiced, demonstrating a reasonable probability that but for his

counsel’s errors, the result of the proceeding would have been different.12

       (9)    Carter argues his counsel should have severed the person prohibited

charge to prevent the “jury’s consideration of bad character evidence to infer a

general disposition.”13 However, Carter cannot establish that the failure to sever the

charge would have changed the outcome of the case. The jury was never told why

Carter was a person prohibited and were given specific limiting instructions that the

stipulation was “irrelevant to [their] deliberations in this case,” and they were “not

to speculate as to the reason why defendant is prohibited, nor consider that fact as

evidence of guilt as to the other crimes alleged in the indictment.”14 In addition, the




12
   Strickland v. Washington, 466 U.S. 669, 687–88 (1984); Redden v. State, 150 A.3d 768, 773
(Del. 2016).
13
   Opening Br. at 13; see Massey v. State, 953 A.2d 210, 217 (Del. 2008).
14
   App. to Opening Br. at 81–82; Brown v. State, 782 A.2d 262, 2001 WL 898589, at *2 (Del.
2001) (TABLE) (“A jury is presumed to understand and follow the instructions given by the
Superior Court.”).

                                             6
State never emphasized the stipulation nor encouraged speculation by the jury.15

Therefore, Carter was not prejudiced by his counsel’s failure to sever the charge.16

       (10) Carter argues his counsel was ineffective for not calling Ms. Capers,

because she would have testified that she never felt threatened. There is a “strong

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

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

under the circumstances, the challenged action ‘might be considered sound trial

strategy.’”17 Carter never requested Ms. Capers’ testimony, but rather “hope[d] and

believe[d]” she wouldn’t appear in court.18 “[W]hen a defendant has given counsel

reason to believe that pursuing certain investigations would be fruitless or even

harmful, counsel’s failure to pursue those investigations may not later be challenged


15
   Id.; cf. Wheeler v. State, 127 A.3d 1163, 2015 WL 6150936, at *3 (Del. 2015) (TABLE) (finding
defendant was not prejudiced by stipulating to being a person prohibited when his counsel
“prepared a redacted form of the indictment that eliminated references to [the defendant’s]
previous conviction”); State v. Rose, No. 1206001558, 2016 WL 354892, at *4 (Del. Super. Ct.
Jan. 28, 2016) (finding “no reason to believe that the outcome would have been different if trial
counsel had chosen some other tack” than stipulating to being a person prohibited when the jury
was not aware of the reason).
16
   We cannot find any plausible tactical reason for stipulating before the jury to the fact that Carter
was a person prohibited. A guilty plea to the person prohibited charge would have been preferable
as Carter was not challenging his possession of the weapon. We agree, however, that this
stipulation does not, on this record, constitute grounds for reversal. As to this point, Chief Justice
Strine is not convinced that a jury instruction asking a jury not to consider why a person is legally
prohibited from carrying a weapon can be meaningful, as he finds it unlikely that the jury would
not reasonably infer that whatever the reason was, it was one that cut against the defendant. But,
because the evidence against Carter was so formidable, the Chief Justice supports the conclusion
that there is no reasonable probability that the outcome at trial would have differed if the stipulation
had not occurred.
17
   Redden, 150 A.3d at 773 (quoting Strickland, 466 U.S. at 689).
18
   App. to Opening Br. at 254.

                                                   7
as unreasonable.”19 In addition, the decision was reasonable to avoid the State’s

impeachment of Ms. Capers by cross-examining her about her relationship with

Carter and her prior statements to the police that contradicted her affidavit. Thus,

Carter cannot overcome the presumption that his counsel’s decision was sound trial

strategy.

          (11) Lastly, Carter argues his counsel was ineffective for failing to object to

the officer’s testimony as inadmissible hearsay. But the court properly concluded

that regardless of whether the testimony regarding Ms. Capers’ statements was

admissible, Carter was not prejudiced. In Johnson v. State, this Court found an

inadmissible statement regarding identification of a defendant was not prejudicial

because the information was “merely cumulative in the State’s case against [the

defendant], and it did not have important relevance as an explanation” of his

conduct.20       Similarly, the officer’s statements were merely cumulative of Ms.

Capers’ statements in the 911 call. Therefore, Carter cannot establish a reasonable

probability that the outcome would have been different had the testimony been

excluded.




19
     Strickland, 466 U.S. at 691.
20
     Johnson v. State, 587 A.2d 444, 451 (Del. 1991).
                                                 8
     NOW, THEREFORE, it is hereby ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                    BY THE COURT:

                                    /s/ Collins J. Seitz, Jr.
                                           Justice




                                9
