IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

ID. No. 1312014951

<

JEROME MADISON

Submitted: January l l, 2018
Decided: April 11, 2018

MEMORANDUM OPINION AND ORDER
Upon Defendant, Jerome Madison ’s, Amended Motl`onfor Postconviction Relz`ef,

DENIED.

Karin M. Volker, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, for the State of Delaware.

Christopher S. Koyste, Esquire, LaW Offlce of Christopher S. Koyste, LLC,
Bellefonte, Delaware, for Defendant Jerome Madison.

WALLACE, J.

I. INTRODUCTION
Before the Court is Defendant Jerome Madison’s (“Madison”) Amended
Motion for Postconviction Relief. Madison, Who Was sentenced to an aggregate
mandatory period of incarceration of forty-two years, asks the Court to set aside his
convictions for: Rape First Degree; Attempted Rape First Degree; Unlawful SeXual
Contact First Degree; Home Invasion; Possession of a Deadly Weapon During the
Commission of a Felony; Assault Second Degree; Assault Third Degree;
Kidnapping First Degree (tWo counts); and Terroristic Threatening (tWo counts).
For the reasons stated beloW, Madison’s motion is DENIED.
II. FACTUALl AND PROCEDURAL BACKGROUND
In December 2013, Madison Was arrested by NeW Castle County police and
gave a post-anda Statement confessing to entering the victim’s house and
assaulting the victim and the victim’s companion Madison Was charged by
indictment With: three counts of Rape First Degree, one count of Home Invasion,

one count of Possession of a Deadly Weapon During the Commission of a Felony,

 

' The factual outline of Madison’s crimes is set forth in the Delaware Supreme Court’s direct
appeal affirmance See Madison v. State, 2016 WL 363 734, at *l (Del. Jan. 28, 2016), reargument
denied (Feb. 29, 2016), as corrected (Feb. 29, 2016). Here the Court recounts only the factual
background of the prior proceedings necessary to resolve Madison’s postconviction claims.

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two counts of Kidnapping First Degree, two counts of Assault Second Degree, and
two counts of Terroristic Threatening.2

Madison’s privately-retained trial counsel, J ames A. Natalie, Jr., Esquire, filed
five pre-trial applications: a motion to Withdraw as counsel;3 a motion for full
psychiatric evaluation;4 a motion for the reduction of bail;5 a motion to suppress;6
and a notice of a mental illness defense.7 The Court denied each motion and set trial
for September 2014.8 Madison Waived his right to a jury trial, and a two-day bench

trial Was held.9 At trial, Witnesses included the victims, A.T. and E.C., and several

 

2 Indictment, State v. Jerome Madison, ID No. 1312014951 (Del. Super. Ct. Jan. 21, 2014)
(D.I. 2).

3 Mot. to Withdraw as Counsel, State v. Jerome Madison, ID No. 1312014951 (Del. Super.
Ct. June 24, 2014) (D.I. 23).

4 Mot. for Full Psychiatric Evaluation, State v. Jerome Madison, ID No. 1312014951 (Del.
Super. Ct. June 24, 2014) (D.I. 25).

5 Mot. for Reduction of Bail, State v. Jerome Madison, lD No. 1312014951 (Del. Super. Ct.
June 24, 2014) (D.I. 26).

6 Mot. to Suppress, State v. Jerome Madison, ID No. 1312014951 (Del. Super. Ct. June 24,
2014) (D.I. 27).

7 Notice of Defense of Mental Illness, State v. Jerome Madison, ID No. 1312014951 (Del.
Super. Ct. June 24, 2014) (D.I. 24).

8 Order, State v. Jerome Madison, ID No. 1312014951 (Del. Super. Ct. June 27, 2014) (D.I.
29); Scheduling Order, State v. Jerome Madison, ID No. 1312014951 (Del. Super. Ct. Jul. l6,
2014) (D.I. 32).

9 Stipulation of Waiver of Jury Trial, State v. Jerome Madison, ID No. 1312014951 (Del.
Super. Ct. Sept. 23, 2014) (D.I. 41).

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police officers. Certain evidence that may have yielded DNA evidence had been
collected from the crime scene, but was neither tested nor presented at trial.'O

The Court delivered a verdict of guilty on: one count each of Rape First
Degree, Attempted Rape First Degree, Unlawful SeXual Contact First Degree, Home
Invasion, Possession of a Deadly Weapon During the Commission of a Felony,
Assault Second Degree, and Assault Third Degree; and two counts each of
Kidnapping First Degree and Terroristic Threatening.ll

Mr. Natalie then flled a second motion to withdraw, which the Court again
denied.12 Madison subsequently filed: a pro se motion to remove Mr. Natalie and
appoint new counsel; a pro se motion for recusal of the trial judge; a pro se motion
to invoke Rule 47 and participate with defense counsel; and, a pro se motion to
vacate judgment and for entry of a judgment of acquittal. Each of Madison’s pro se

motions was denied.13

 

10 See Madison, 2016 WL 363734, at *3.

ll Verdict, State v. Jerome Madison, ID No. 1312014951 (Del. Super. Ct. Oct. l, 2014) (D.I.
42).

12 Second Mot. to Withdraw, State v. Jerome Madison, ID No. 1312014951 (Del. Super. Ct.
October 21, 2014) (D.I. 45).

13 See State v. Madison, 2015 WL 1119540 (Del. Super. Ct. Mar. 10, 2015).

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Madison was sentenced to an aggregate incarceration period of sixty years,
suspended after forty-two years.14 Madison appealed his sentence to the Delaware
Supreme Court.15 Madison’s request to proceed pro se on direct appeal was
remanded to this Court for an evidentiary hearing.16 At the hearing, the Court found
that Madison had knowingly and voluntarily waived his right to counsel on appeal.'7
Before the appeal was heard, Madison filed four pro se motions in this Court: three
motions to compel and a motion for the appointment of counsel. Each motion was
denied without prejudice.18

On direct appeal, the Supreme Court affirmed this Court’s verdict, sentence

and denial of post-trial relief.19

 

14 Sentencing Order, Stal‘e v. Jerome Madison, ID No. 1312014951 (Del. Super. Ct. Mar. 13,
2015) (D.I. 57).

15 Notice of Appeal, State v. Jerome Madison, ID No. 1312014951 (Del. Super. Ct. Mar. 27,
2015)(D.1. 58).

16 Findings of Fact and Conclusion of Law, State v. Jerome Madison, ID No. 1312014951
(Del. Super. Ct. June ll, 2015) (D.I. 70).

'7 Id.

18 See Order, State v. Jerome Madison, ID No. 1312014951 (Del. Super. Ct. Jul. 22, 2015)
(D.I. 75); Order, State v. Jerome Madison, ID No. 1312014951 (Del. Super. Ct. Feb. 17, 2016)
(D.I. 79); Order, State v. Jerome Madison, ID No. 1312014951 (Del. Super. Ct. Feb. 17, 2016)
(D.I. 80); Order, State v. Jerome Madison, ID No. 1312014951 (Del. Super. Ct. Feb. 23, 2016)
(D.I. 82).

19 Madison v. State, 2016 WL 363734, at *4 (Del. Jan. 28, 2016), reargument denied (Feb.
29, 2016), as corrected (Feb. 29, 2016).

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Madison filed pro se motions for postconviction relief and for the appointment
of counsel. His motion for the appointment of counsel was granted.20 An amended
motion for postconviction relief was filed by new counsel.21 Mr. Natalie filed an
affidavit at the Court’s order.22 And the State thereafter filed its response to the
amended motion.23 Madison, through counsel, replied24 but later filed a motion for
leave to supplement the amended postconviction motion. That motion to supplement

was granted by this Court.25 Mr. Natalie filed a supplementary letter to Madison’s

 

20 Order, State v. Jerome Madison, ID No. 1312014951 (Del. Super. Ct. Mar. 30, 2016) (D.I.
87).

2' Am. Mot. for Postconviction Relief, State v. Jerome Madison, lD No. 1312014951 (Del.
Super. Ct. Jan. 23, 2017) (D.I. 101) (hereinafter “Def.’s Mot.”). Madison filed supplemental
postconviction claims pro se on the same date, which this Court denied on January 25, 2017.
Order, State v. Jerome Madison, ID No. 1312014951 (Del. Super. Ct. Jan. 25, 2017) (D.I. 106).

22 Aff. of Trial Counsel Resp. to Am. Mot. for Postconviction Relief, State v. Jerome
Madison, ID No. 1312014951 (Del. Super. Ct. Mar. 22, 2017) (D.I. 109).

23 State’s Resp. to Def.’s Mot. for Postconviction Relief, State v. Jerome Madison, lD No.
1312014951 (Del. Super. Ct. Apr. 5, 2017) (D.I. 110) (hereinafter “State’s Resp.”).

24 Def.’s Reply to State’s Resp. to Def.’s Am. Mot. for Postconviction Relief, State v. Jerome
Madison, ID No. 1312014951 (Del. Super. Ct. Oct. 13, 2017) (D.I. 126) (hereinafter “Def.’s
Reply”).

25 Order, State v. Jerome Madison, ID No. 1312014951 (Del. Super. Ct. May 30, 2017) (D.I.
119).

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supplemental amended postconviction motion.26 And the State filed a response to

the supplemental claims.27

III. DISCUSSION

A. MADIsoN’s INEFFECTIVE AsslsTANCE oF CoUNsEL CLAIMS ARE NoT
PROCEDURALLY BARRED, BUT MADISON’S CLAIM oF A BRADY
VIoLATIoN Is BARRED.

Superior Court Criminal Rule 61(i)(3) provides that “[a]ny ground for relief
that was not asserted in the proceedings leading to the judgment of conviction, as
required by the rules of this court, is thereafter barred[.]”28 But the Delaware
Supreme Court and this Court have consistently held the 61(i)(3) bar inapplicable to
an inmate’s “claims [of] ineffective assistance of counsel, which could not have been
raised in any direct appeal.”29 Because Madison’s motion is timely filed and raises
ineffective assistance of counsel claims that could not have been raised during his

trial or on direct appeal, certain of his motion’s claims are not procedurally barred

by this Court’s Rule 61(i)(3).

 

26 Letter in Resp. to Def.’s Suppl. Am. Mot. for Postconviction Relief, State v. Jerome
Madison, ID No. 1312014951 (Del. Super. Ct. Aug. 18, 2017) (D.I. 121).

27 State’s Resp. to Def.’s Suppl. Am. Mot. for Postconviction Relief, State v. Jerome
Madison, ID No. 1312014951 (Del. Super. Ct. Oct. 12, 2017) (D.I. 125) (hereinafter “State’s
Suppl. Resp.”).

28 SUPER. CT. CRIM. R. 61(i)(3).

29 See, e.g., State v. Smith, 2017 WL 2930930, at *1 (Del. Super. Ct. July 7, 2017).

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Superior Court Criminal Rule 61(i)(4) acts to bar claims previously raised on
direct appeal. Under Rule 61(i)(4), a motion for postconviction relief is barred if
“[a]ny ground for relief [ ] 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.”30 “Neither federal nor state courts are
required to relitigate in postconviction proceedings those claims which have been
previously resolved.”31 Madison’s first claim_his “Brady” claim_adjudicated on
direct appeal to the Delaware Supreme Court, falls under Rule 61(i)(4).

]. Madison ’s Claim of a Brady Violation is Procedurally Barrea'

Madison raises one non-ineffective assistance of counsel claim in his
Amended Motion: that the State violated Brady v. Maryland by failing to timely
disclose a detective’S report. The State contends that Rule 61(i)(4) procedurally bars
this claim because it was formerly adjudicated on direct appeal.32 Madison counters
that the claim adjudicated on direct appeal was a discovery, or Jencks, violation,

distinct from the Brady violation he asserts here.33

 

30 SUPER. CT. CRIM. R. 61(i)(4).
31 Younger v. State, 580 A.2d 552, 556 (Del. 1990).
32 State’s Resp. at 5-6.

33 Def.’s Reply at l.

During his appeal to the Delaware Supreme Court, Madison raised the issue
of the late disclosure of one detective’s report, arguing that it was a violation of
Superior Court Criminal Procedure Rule 26.2.34 Specifically, Madison argued on
appeal that “The State[’]s violation of [Superior Court Criminal Rule 26.2]
deprive[d] and infringed Madison[’s] defense attorney to [sic] efficiently and
effectively cross examine all three of the State’s witnesses.”35 Madison now argues
that the State “committed a Brady violation by failing to timely disclose crucial
impeachment information to the defense, thereby impeding trial counsel’s ability to
effectively cross-examine multiple state witnesses[.]”36

On appeal, the Supreme Court considered whether Madison’s “constitutional
right to confront witnesses” had been violated by the State’s failure “to produce

statements of the victims and a typed report of [the detective],” and found no plain

error.37

 

34 Madison, 2016 WL 363734, at *3. Rule 26.2 codifies the United State Supreme Court’s
ruling in Jencks v. United States and “requires the State, upon request, to produce statements of a
witness to the defense prior to the cross-examination of that witness.” State v. Fowler, 2017 WL
4381384, at *4 (Del. Super. Ct. Sept. 29, 2017).

33 See also Appellant’s Op. Br., Madison v. State, 2016 WL 363734, at 11 4 (Del. Aug. 13,
2015).

36 Def.’s Mot. at 9. Brady requires the State to turn over all evidence favorable to the accused
where the evidence would create “a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.” Starling v. State, 882 A.2d
747, 756 (Del. 2005).

37 Madison, 2016 WL 363734, at *3.

“Justice does not require that an issue that has been previously considered and
rejected be revisited simply because the claim is refined or restatea’.”38 As the
Supreme Court already addressed Madison’s arguments concerning the State’s
production of State witness statements and the detective’s typed report, Madison’s
claim that his Jencks violation claim and Brady violation claim are distinct is
unavailing

The Delaware Supreme Court, in Riley v. State, found that in assessing the
claims raised in Riley’s motion, “the issues underlying the three remaining claims
were carefully addressed in [the earlier case]; and we conclude that the interests of
justice would not be served by any further consideration of them.”39

Similarly, when addressing close but not identical claims brought by the
petitioner in Skinner v. State, the Delaware Supreme Court stated “[a]lthough this
Court has not previously addressed Skinner’s ineffectiveness of counsel claim, per
se, our disposition of Skinner’s challenge to the absence of a specific jury instruction
on the issue of ‘restraint’ in his direct appeal was, in fact, a substantive resolution of

Skinner’s present ineffectiveness of counsel claim.”‘“) The Court noted that

Skinner’s claim of ineffective assistance of counsel was merely a “refinement of the

 

38 Riley v. State, 585 A.2d 719, 721 (Del. 1990) (emphasis added).
39 Id.

40 skinner v. sia¢e, 607 A.2d 1170, 1172 (Del. 1992).

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jury instruction issue . . . which was rejected by this Court in Skinner’s direct
appeal.”‘" The Court, relying on Riley, held that “a defendant is not entitled to have
a court re-examine an issue that has been previously resolved ‘simply because the
claim is refined or restated.”’42 And the Court ultimately denied Skinner’s
ineffective assistance of counsel claim as procedurally barred.43

Several of this Court’s cases align with Skinner. In State v. Smith, this Court
denied Smith’s claim as a merely reworded version of a previously addressed and
denied claim,44 “The Court [ ] notes that although you have couched your ineffective
assistance of counsel claim in slightly different terms from your second
postconviction motion, ‘[j]ustice does not require that an issue that has been
previously considered and rejected be revisited simply because the claim is refined
or restated.”’45 Later, in Garvey v. State, this Court denied Garvey’s claim for the
same reasons cited in Skinner and Smith.46 The Court noted that it “disagree[d] with

Garvey’s contention that his current claim is sufficiently distinguishable from that

 

41 Skinner, 607 A.2d at 1172.
42 Id.
43 Ia'. at 1173.

44 stare v. smizh, 1994 WL 713969, ar *2 (Del. super. Ct. Nov. 15, 1994), afrd, 751 A.2d
878 (Del. 2000).

45 1a (citing Riley, 585 A.2d at 721).

46 Garvey v. State, 2009 WL 2882873, at *1 (Del. Sept. 10, 2009).

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previous claim to warrant consideration in this proceeding.”47 Instead, the Court
found that he had “merely recast his previously-rejected claim as an attack on his
indictment.”48 Thus, the Court denied his claim as procedurally barred.49

Under Skinner, Smith, and Garvey, there is no requirement that the two claims
at issue must be identical in order for the Rule 61(i)(4) procedural bar to apply.
Instead, the relevant determination is whether the underlying issues of the claims
have already been decided.

And here, the substance of Madison’s Brady violation claim was decided on
direct appeal. In his appeal, Madison claimed the State violated his constitutional
right to confront witnesses by failing to provide him with out-of-court statements
made by state witnesses and a detective’s typed report in violation of Criminal Rule
26.2, a Jencks violation. In his present Motion, Madison claims that his trial counsel
was hampered_and therefore his fair trial rights violated_because the State failed
to timely disclose to the defense impeachment information in the form of State
witness statements and/or a detective’s typed report, He now labels this a Brady

violation. Similar to Skinner, Smith, and Garvey, the fact that Madison has used

 

47 Garvey, 2009 WL 2882873, at *l.
48 Id.

49 lai
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different vocabulary and a different name for his claim is not determinative of
whether his claim is procedurally barred.

lt is not clear how Madison’s two claims are distinct beyond the phrasing used
by Madison. Nor does Madison allege anything in his Brady argument that was not
previously addressed by the Delaware Supreme Court via the discovery/Jencks claim
on direct appeal. Instead, the Supreme Court’s previous determination that there
was no error as to the supposed delayed production of certain documents is equally
applicable to his Braa’y violation claim, Because this issue has already been
addressed on direct appeal, Madison’s Brady violation claim is DENIED as
procedurally barred under Rule 61(i)(4).50

B. MADISON FAILS To ESTABLISH A CLAIM FoR INEFFECTIVE
AssIsTANCE oF CoUNsEL.

On a claim of ineffective assistance of counsel, the Court reviews the claim
under the requirements prescribed by Stricklancl v. Washington.31 Under Stricklancl,
an inmate is required to show: (l) “counsel’s performance was deficient, meaning

that counsel’s representation fell below an objective standard of reasonableness” and

 

50 And even if it were not, the trial record reflects that the Court, as fact finder here, was well
aware of the alleged impeachment evidence that the detective’s report represented See, e. g. , App.
to Def.’s Mot. A163-65, A181, A186_87. See also Madison, 2016 WL 363734, at *4. As that
fact finder, the Court notes that there is no reasonable probability that earlier disclosure would
have led to a different result in Madison’s trial proceeding. See Starling, 882 A.2d at 756 (Braa'y
claimant must “show how the withheld evidence materially affected the verdict.”).

51 466 U.s. 668 (1984).

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(2) “if counsel is shown to be deficient, then the defendant must demonstrate
prejudice from counsel’s error.”52 Delaware applies the Stricklana’ test for review
of ineffective assistance of counsel claims.33 First, “the defendant must show ‘that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.”’34 Then, the defendant must
“plead allegations of [ ] prejudice with particularity.”33 “Prejudice is defined as ‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”’36 Failure to make one or the other showing
»57

under the Stricklana’ test “will render the claim unsuccessful.

l. Madison Fails to Show that Trial Counsel’s Failare to Cross-Examine
Witnesses on Inconsistent Statements was Constitationally Defl`cient

Madison alleges two separate claims of ineffective assistance of counsel: first,
that Madison’s trial counsel was ineffective in failing to cross-examine several

witnesses on inconsistent statements contained in a detective’s report; and second,

 

32 Hoskins v. State, 102 A.3d 724, 730 (Del. 2014).

33 See, e.g., Hoskins, 102 A.3d 724; State v. Hamby, 2005 WL 914462, at *l (Del. Super. Ct.
Mar. 14, 2005); State v. Flowers, 150 A.3d 276 (Del. 2016); State v. Ellerbe, 2016 WL 4119863
(Del. Super. Ct. Aug. 2, 2016); Flamer v. State, 585 A.2d 736 (Del. 1990).

34 Hoskz`ns, 102 A.3d at 730 (quoting Stricklana', 466 U.S. at 687).

33 Ellerbe, 2016 WL 4119863, at *3.

36 Hoskins, 102 A.3d at 730 (quoting Stricklana’, 466 U.S. at 687).

37 Hamby, 2005 WL 914462, at *2.

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that his trial counsel was ineffective in failing to cross-examine the complaining
witness, E.C., on prior inconsistent statements Both ineffective assistance of
counsel claims must fail because Madison fails to satisfy either prong of Stricklana’.

There is a strong presumption that a trial counsel’s representation was
reasonable and “‘it is not this Court’s function to second-guess reasonable trial
tactics.”’58 ln evaluating an attomey’s performance, a reviewing court should
“‘eliminate the distorting effects of hindsight,’ ‘reconstruct the circumstances of
counsel’s challenged conduct,’ and ‘evaluate the conduct from counsel’s perspective
at the time.”’39 “lf an attorney makes a strategic choice ‘after thorough investigation
of law and facts relevant to plausible options,’ that decision is ‘virtually
unchallengeable.”’60

In Raglana’ v. State, the defendant raised a claim of ineffective assistance of
counsel on the ground that his trial counsel’s cross-examination of two witnesses

was ineffective61 The Delaware Supreme Court noted that in the trial counsel’s

affidavit, she stated that it was a strategic decision not to question the witness in the

 

33 Ellerbe, 2016 WL 4119863, at *3 (quoting State v. Drummoncl, 2002 WL 524283, at *1
(Del. Super. Ct. Apr. l, 2002)). See also Flamer, 585 A.2d at 753-54.

39 Flowers, 150 A.3d at 282 (quoting Stricklana’, 466 U.S. at 687-88).
60 Hoskins, 102 A.3d at 730 (quoting Ploofv. State, 75 A.3d 840, 852 (Del. 2013)).

31 Ragland v. State, 2009 WL 2509132, at *2 (Del. 2009).

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manner suggested by Ragland because it “would have inculpated Ragland and was
detrimental to his defense.”62 The Court stated: “[s]trategic decisions by counsel are
entitled to a ‘strong presumption’ of professional reasonableness.”63 The Court ruled
that trial counsel’s strategic decision was objectively reasonable and, therefore,
Ragland’s claim failed.64 Similarly, in State v. Ellerbe, this Court found trial
counsel’s choice not to cross-examine a witness on possible impeachment evidence
“obj ectively reasonable.”63 The Court stated: “[a]n attorney’s decision as to how to
cross-examine a witness is a tactical decision which deserves great weight and
deference.”66 The Court held that the attomey’s decision was based on a reasonable
conclusion that to cross-examine the witness, as Ellerbe’s postconviction counsel
urged, would have been of little value to the defense,67 Further, the Court noted that
Ellerbe failed to show that the possible testimony would have likely resulted in a

different outcome at trial.68

 

62 Ragland, 2009 WL 2509132, at *2.
63 Id.

64 Id_

65 Ellerbe, 2016 WL 4l l9863, 81*3.
66 161

67 Id_

68 Ia'. at *3-4.

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Here, too, Madison establishes neither that trial counsel’s performance was
deficient because it fell below an objective standard of reasonableness nor that he
was prejudiced by trial counsel’s performance

Madison alleges that Mr. Natalie was ineffective in failing to cross-examine
certain witnesses regarding inconsistencies in a detective’s report and in their prior
statements. Madison claims that this impeachment evidence was necessary for the
Court to resolve alleged conflicts in testimony and properly reach its verdict. He
says the purported evidence served his defense by discrediting the complaining
witnesses’ testimony. He alleges that the supposed failure to raise these
inconsistencies at trial therefore prejudiced him. According to Madison, they were
essential to his reasonable doubt strategy. But in Ellerbe, this Court held that “[a]n
attomey’s decision as to how to cross-examine a witness is a tactical decision which
deserves great weight and deference.”69 And, under Delaware case law, Mr.
Natalie’s strategic decisions as to how to cross-examine witnesses are “entitled to a
‘strong presumption’ of professional reasonableness.”70

ln his Response to Madison’s Amended Motion, Mr. Natalie addressed

Madison’s cross-examination claims. Regarding Madison’s charge that he failed to

 

09 Ellerbe, 2016 WL 4119863, at *3.

70 Ragland, 2009 WL 2509132, at *2

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cross-examine on the issue of inconsistencies in a detective’s report, Mr. Natalie
stated: “trial counsel believed then, and continues to believe now, that to re-explore”
the possible inconsistencies suggested by Madison “would not have helped
[Madison].”71 And as to Madison’s claim that Mr. Natalie failed to cross-examine
witnesses on prior inconsistent statements, Mr. Natalie stated: “[E.C.]’s trial
testimony, by leaving out several significant utterances by [A.T.], helped the
Defendant’s case by failing to support her statement and testimony. Trial counsel
intentionally let the discrepancy stand by itself to establish that the utterances never
occurred.”72 He explored fully that “[E.C.] had been drinking, perhaps excessively,
and that alone served to affect his credibility.”73 And lastly, Mr. Natalie argued
discrepancies, inconsistencies and credibility during his closing argument.74

“‘[I]t is not this Court’s function to second-guess reasonable trial tactics.”’75

Mr. Natalie’s own statements clearly explain the strategic decisions he made on how

to proceed on cross-examination. Those decisions are “entitled to a ‘strong

 

71 Aff. of Trial Counsel Resp. to Am. Mot. for Postconviction Relief at 3.
72 Ia'.
73 Ia'. at 4.

74 App. to Def.’s Mot. at A201-04.

73 Ellerbe, 2016 WL 4119863, at *3.

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presumption’ of professional reasonablen'ess.”76 Madison fails to point to any
evidence suggesting Mr. Natalie’s performance was not objectively reasonable He,
therefore, cannot satisfy the first prong of Strickland.

Madison’s claims additionally fail to meet the burden under the second prong
of Stricklana’ by not showing how Mr. Natalie’s performance at trial was prejudicial
to the outcome77 The State presented overwhelming evidence in support of the
charges of which Madison was finally convicted. That included, among other things,
Madison’s own confession to entering the house, assaulting the victims, and his other
acts during the incident. Substantial trial evidence regularly defeats thin claims of
prejudice Delaware courts consistently find those convicted not prejudiced by their
trial counsels’ performance in light of the weight of other evidence presented at
trial.78 Given the overwhelming weight of the State’s evidence here, it is unlikely
that the possible impeachment testimony Mr. Natalie might have elicited via a

different cross-examination would have resulted in acquittal in this bench trial. And

 

70 Ragland, 2009 WL 2509132, at *2.

77 See supra note 50, at 13.

73 See Ellerbe, 2016 WL 4119863, at *4 (holding that “it is unlikely that . . . additional
testimony would have overcome the overwhelming evidence against Ellerbe”); Drummond v.
State, 2002 WL 1472281, at *2 (Del. 2002) (holding that “[i]n view of the overwhelming evidence
of Drummond’s guilt, . . . including his confession and his flight from the crime scene, Drummond
cannot establish actual prejudice from his trial counsel’s failure to more thoroughly cross-examine
Officer Evans on his observations during the stop”); Neal v. State, 80 A.3d 935, 946 (Del. 2013)
(“Given the overwhelming record evidence that supports the accomplice’s testimony, Neal cannot
show a reasonable probability that the jury would have come to a different result [but for trial
counsel’s decisions.]”).

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Madison has not pointed to any potential testimony that introduces a reasonable
possibility of altering the outcome of his trial. Therefore, Madison’s claims of
ineffective assistance of counsel alleging deficient cross-examination are DENIED
for failing to satisfy the Stricklancl standard.

2. Madison Fails to Show Trial Counsel ’s Ine]j‘ectiveness in F ailing to Test DNA
and Blood Evia’ence

Madison next argues trial counsel’s ineffectiveness in failing to have DNA
and blood evidence tested. Madison takes the position that he cannot proceed on
this claim without access and permission to test the evidence to determine whether
the failure to test the evidence at trial was ineffective Yet, he contends that the
swabs do not contain blood, and that would have bolstered his defense that the rape
did not occur. But again, Madison fails to show either that Mr. Natalie’s conduct
fell below an objectively reasonable standard, or that testing the DNA or blood
evidence would have resulted in a different outcome at trial.

In Jackson v. State, the defendant claimed his counsel was ineffective for
failing to “conduct independent forensic tests of the physical evidence[.]”79 The
Supreme Court affirmed this Court’s finding “that trial counsel made a reasonable

tactical decision not to hire or consult additional forensic experts to test the physical

 

79 770 A.2d 506, 511 (Del. 2001).

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evidence placing Jackson at the scene of the crime.”80 The Court pointed to the
overwhelming amount of other evidence That evidence included Jackson’s lack of
an alibi, witness testimony about Jackson’s statements, witness testimony about
having seen “the fruit of the burglary” in Jackson’s apartment, and a witness
statement about seeing “Jackson place a bloody glove in a garbage can.”8l In tum,
the Supreme Court concluded that the Superior Court was correct in holding that
given the weight of the other evidence, “it was not improper for counsel to forgo
forensic testing of the crime scene evidence.”82

The Delaware Supreme Court revisited the issue in Staats v. State, in which
the defendant argued that untested DNA evidence had potential exculpatory value83
The Superior Court had previously held that trial counsel’s “decision not to hire an
independent DNA expert was reasonable and does not amount to ineffective

assistance of counsel.”84 The Supreme Court affirmed the Superior Court’s holding,

citing Jackson.83 The Court noted that, similar to Jackson, there was “strong

 

80 Jackson, 770 A.2d at 513.

81 Ia’.

82 Ia'.

83 Staats v. State, 961 A.3d 514, 518 (Del. 2008).
84 Id

85 Id

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evidence placing Staats at the scene of the crime and implicating him in the
murder.”86

Here, Madison again fails to overcome the “strong presumption that counsel’s
performance fell within the wide range of reasonable professional assistance.”87 Mr.
Natalie, in his response to Madison’s Amended Motion, stated: “[g]iven [l\/Iadison’ s]
own statement, the independent scientific examination of case evidence would be
superfluous or irrelevant, not to mention potentially prejudicial to [Madison]
himself.”88 Mr. Natalie made a strategic decision when he chose not to have the
evidence tested. Having acquired any potential trial benefit of that decision with
unsatisfactory results, Madison’s postconviction counsel has changed course The
Court will not indulge such tactical vacillation.89

Too, Madison again fails to show that Mr. Natalie’s decision prejudiced the
outcome of his trial. ln Madison’s case, much like that of Jackson and Staats, the

potential evidence from the DNA and blood would not have overcome the

overwhelming weight of evidence presented at trial as to the issue of consent on the

 

80 Staats, 961 A.3d at 518.
87 Drumgo v. State, 2012 WL 1377596, at *2 (Del. Apr. 17, 2012).
88 Aff. Of Trial Counsel Resp. to Am. Mot. for Postconviction Relief at 4.

89 See Ana'erson v. State, 831 A.2d 858, 868 (Del. 2003).
_22_

rape charges. This evidence includes Madison’s own admissions, victim testimony,
and the medical evidence

Madison fails to establish either that Mr. Natalie’s decision was deficient or
that he was prejudiced by that decision. The Court therefore DENIES Madison’s
request for permission to test the DNA90 and blood evidence as there is no reasonable
probability that the results Madison hopes for would have then or would now change
the outcome of his trial.

3. Because Madison ’s Inejj”ective Assistance of Counsel Claims Fail, His Clai)n
of Cumulative Error is Without Merit

Notwithstanding those prior failures, Madison posits that the cumulative
effect of his counsel’s supposed errors denied him a fair trial. But, this cumulative
argument gains no more traction than the others did severally. None of his
complaints of error, either individually or cumulatively, demonstrate Madison was
deprived a fair trial. More directly, because Madison has failed on each count to
prove that his trial counsel was deficient and that, but for trial counsel’s performance,
the outcome of the trial would have been different, he fails in the aggregate

The Delaware Supreme Court addressed a similar cumulative effect argument

in Hoskins v. State.91 The Supreme Court utilized a plain error standard of review

 

90 See generally DEL. CODE ANN. tit. 11, § 4504(a) (2017) (governing a prisoner’s entitlement
to post-conviction DNA testing).

9' 102 A.3d 724 (Del. 2014).

_23_

and looked for “material defects which are apparent on the face of the record; which
are basic, serious and fundamental in their character, and which clearly deprive an
accused of a substantial right, or which clearly show manifest injustice.”92 Under
this analysis, the Court noted that “none of [the defendant’s] individual claims of
ineffective assistance have merit because of a failure to show prejudice,” and,
consequently, found the defendant’s “claim of cumulative error [ ] without merit.”93

Madison fails to establish prejudice under each of his individual trial
performance claims. Therefore, Madison has not established any due process
violation based on cumulative error sufficient to grant him relief. His motion is

DENIED on this ground.

4. Madison Fails to Show that Mr. Natalie was Inejj%ctive for Failing to
Communicate and Ejj”ectively Advise Madison on Plea Possibilities

Madison’s Supplement to the Amended Motion presents two additional
claims. Madison suggests that Mr. Natalie was ineffective for failing to properly
advise him of the elements of the crimes that ultimately resulted in his conviction:
specifically, that Mr. Natalie lead Madison to erroneously believe that he could not

be convicted of rape without proof of penetration, and later failed to effectively

 

92 Hoskins, 102 A.3d at 735.

93 Id.

_24_

communicate a plea offer to Madison. This false information, Madison argues,
caused him to reject a plea offer he might otherwise have accepted.

Madison cites to Lafler v. Cooper in support of his position that he was denied
effective assistance of counsel when considering his own plea bargain. In Lafler,
the defendant’s sentence was remanded and the State made to reoffer a plea deal due
to trial counsel’s deficient performance.94 The United States Supreme Court stated
that “[i]n the context of pleas a defendant must show the outcome of the plea process
would have been different with competent advice.”93 Unlike the present case, in
Lafler, “all parties agree[d] the performance of respondent’s counsel was deficient
when he advised respondent to reject the plea offer on the grounds he could not be
»96

[as a matter of law] convicted at trial.

a. Madison Fails to Show Trial Counsel was Objectively Unreasonable in
Advising Him on the Elements of Rape

Madison cites no compelling evidence that suggests Mr. Natalie misled him
as to the elements of rape Madison points to Mr. Natalie’s opening statement,
selectively quoting trial counsel as saying, “[W]ithout penetration, you don’t have a

rape.”97 ln fact, Natalie was referring to the specific charge of rape by digital

 

94 Lafler v. Cooper, 566 U.S. 156, 174-75 (2012).
93 Id. at 163.
90 Id.

97 Def.’s Suppl. Mot. at 3.
_25_

penetration when he made the comment: “[Madison is] charged with raping [A.T.]
by digital penetration And that’s significant, because, without penetration, you
don’t have a rape.”98 Madison’s other evidence similarly appears to refer to the
charge of rape by digital penetration and is, at best, unclear. Mr. Natalie states that
Madison was provided “with a copy of the [statutes] pertaining to each of the
indicted charges as well as the applicable SENTAC guidelines and notes. We
reviewed them together. In this case, the State alleged three counts of Rape First
Degree One required proof of penetration and two did not.”99 Lafler is therefore
inapposite here, as Madison, unlike the defendant in Lafler, fails to clear Strickland’s
performance hurdle and show that Mr. Natalie’s advice regarding the counts of rape
was objectively unreasonable 100

b. Madison Fails to Show that Trial Counsel Did Not Effectively
Communicate Plea Deals

Madison additionally claims that because of Mr. Natalie’s allegedly
misleading advice on the counts of rape, and due to Mr. Natalie’s failure to
effectively communicate plea deals available to him, Madison rejected a plea offer

he might otherwise have accepted. Madison refers to a supposed 15- or l9-year pre-

 

98 Tr. of Trial, State v. Jerome Madison, ID No. 1312014951, at 11:4-7 (Del. Super. Ct. Sept.
24, 2014) (D.I. 60) (hereinafter “Tr. of Trial”).

99 Letter of Trial Counsel Resp. to Suppl. Am. Mot. for Postconviction Relief at 2.

100 See Lafler, 566 U.S. at 162-63.

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trial plea offer, but acknowledges that his counsel “has been unable to locate a
written copy of either of these plea proposals.”101 Mr. Natalie contends that while
he repeatedly requested a 15-year plea from the State, no such offer was ever
made.102 The State agrees that it never extended such an offer to Madison.103 Mr.
Natalie cannot be found to have ineffectively communicated a plea deal that never
existed.

The record reflects that Mr. Natalie communicated the pre-trial plea deal of

twenty-five years,104 which Madison rej ected,103 and a mid-trial plea deal of twenty-

 

101 Def.’s Suppl. Mot. at 5. The only suggestion there was a “19-year” offer is from a passing
reference by Mr. Natalie at a plea-by-appointment calendar before a different judge Tr. of Plea
by Appointment Hearing, State v. Jerome Madison, ID No. 1312014951, at 2 (Del. Super. Ct. June
19, 2014). But there is no other record evidence of any such offer being made And certainly the
totality of the record here fails to demonstrate that Madison would have accepted such an offer,
that the State would not have cancelled it, or that Madison could have ever made it through a
colloquy that would have allowed the Court to accept such plea from him. See Missouri v. Frye,
566 U.S. 139, 147-49 (2012) (explaining prejudice prong in plea bargaining ineffectiveness case,
i.e., inmate must demonstrate he would have actually accepted the alleged plea offer and it would
have been entered by the Court). To the contrary, the record of this case demonstrates that Madison
never would knowingly, voluntarily and intelligently enter any plea of guilt.

102 Letter of Trial Counsel Resp. to Suppl. Am. Mot. for Postconviction Relief at 3.

103 State’s Suppl. Resp. at 4 (“There is no evidence in the record that a plea to fifteen years
was ever offered by the State.”).

104 See Plea Agreement, State v. Jerome Madison, ID No. 1312014951 (Del. Super. Ct. June
19, 2014) (charging one count each of Rape First, Home lnvasion, Possession of a Deadly Weapon
During the Commission of a Felony, Kidnapping First, and Assault Second).

103 Tr. of Plea by Appointment Hearing at 3 (conveying Madison’s rejection of the plea to
Judge Butler and stating that “[Madison] has asked me to file a number of motions” in the matter).

_27_

three years,106 which Madison also rejected.107 Colloquies exploring each plea
possibility were held. Neither colloquy demonstrates Madison’s sincere willingness
to ever enter a guilty plea. Madison fails to meet his burden under Strickland of
showing that, but for Mr. Natalie’s performance he would have ever accepted any
plea bargain.108 And so, this ineffectiveness claim fails also.

5. Because Madison is Not Entitled to Relief No Evidentiary Hearing is
Required

Finally, Madison requests an evidentiary hearing.109 Under Rule 61, “[t]he
Superior Court has discretion to determine whether to hold an evidentiary

hearing.”110 And where it is apparent on the face of a postconviction motion, the

 

‘06 see Plea Agreement, stare v. Jemme Madison ID No. 1312014951 (Del. super Ct. sept
24, 2014) (charging one count each of Rape First, Home Invasion, Possession of a Deadly Weapon
During the Commission of a Felony, and Assault Second).

107 Tr. of Trial at 115-116.

108 See Frye, 566 U.S. at 147-49 (“To show prejudice from ineffective assistance of counsel
where a plea offer has lapsed or been rejected because of counsel’s deficient performance
defendants must demonstrate a reasonable probability they would have accepted the earlier plea
offer had they been afforded effective assistance of counsel . . . [and] must also show that, if
prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept
it, there is a reasonable probability neither the prosecution nor the trial court would have prevented
the offer from being accepted or implemented.”). The record is clear that Madison never wanted
to accept responsibility for his actions, never could admit his guilt, and certainly could never
engage in a colloquy to do so that would satisfy Delaware law and this Court’s requirements to do
so.

109 See DEL. SUPER. CT. CRIM. R. 61(h)(1) (providing the Court, after reviewing the record
developed in the postconviction proceedings, “shall determine whether an evidentiary hearing is
desirable.”).

110 Johnson v. State, 2015 WL 8528889, at *4 (Del. Dec. 10, 2015).

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responses thereto, the record of prior proceedings, and any added materials that the
petitioner is not entitled to relief, there is no need for an evidentiary hearing.111 After
consideration of the complete evidentiary record and the legal issues raised,
Madison’s request for an evidentiary hearing is DENIED.
IV. CONCLUSION

Madison has shouldered neither his burden of showing objective
unreasonableness of his trial counsel’s conduct, nor his burden of showing he
suffered any prejudice as a result of his trial counsel’s performance He’s also failed

to demonstrate that any Brady violation occurred here And so, Madison’s Motion

/@i b

Paul R. wallac'e, Judge

for Postconviction Relief is DENIED.

IT IS SO ORDERED.

 

Original to Prothonotary

cc: Karin M. Volker, Deputy Attorney General
Christopher S. Koyste, Esq.
Jerome Madison, pro se
Investigative Services Office

 

111 Johnson, 2015 WL 8528889, at *4 (quoting Hawkins v. State, 2003 WL 22957025, at *1
(Del. Dec. 10, 2003)).

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