           IN THE SUPREME COURT OF THE STATE OF DELAWARE

TYWAAN JOHNSON,                       §
                                      §     No. 164, 2015
      Defendant Below,                §
      Appellant,                      §     Court Below: Superior Court
                                      §     of the State of Delaware,
      v.                              §     in and for New Castle County
                                      §
STATE OF DELAWARE,                    §     Cr. ID. No. 1007020056
                                      §
      Plaintiff Below,                §
      Appellee.                       §

                         Submitted: November 18, 2015
                         Decided:   December 10, 2015

Before HOLLAND, VAUGHN, and SEITZ, Justices.

                                     ORDER

      This 10th day of December, 2015, it appears to the Court that:

      (1)     Tywaan Johnson was involved in a drug-deal turned armed-robbery

and murder in 2010. For his role, Johnson was convicted of first degree murder,

first degree robbery, second degree conspiracy, possession of a deadly weapon by

a person prohibited, and two counts of possession of a firearm during the

commission of a felony. Johnson appeals from the Superior Court’s denial of his

motion for postconviction relief in which he argued (a) his trial counsel was

ineffective; (b) the State committed a Brady violation; (c) there was cumulative

due process error; and (d) the Superior Court should have held an evidentiary
hearing. After careful review of the arguments and record on appeal, we find that

Johnson’s arguments are without merit, and affirm.

       (2)    To prevail on a claim of ineffective assistance of counsel, Johnson

must meet the requirements announced in Strickland v. Washington:1 (a) deficient

attorney performance, i.e., counsel’s performance fell below an objective standard

of reasonableness, and (b) prejudice resulting from counsel’s error.2 A defendant

bears a heavy burden to overcome the strong presumption that counsel’s conduct

falls within the wide range of reasonable conduct. 3 To show prejudice, Johnson

must establish “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” 4

We review the Superior Court’s denial of a motion for postconviction relief for

abuse of discretion. 5 “In discharging its appellate function, the Court must

carefully review the record to determine whether competent evidence supports the

court’s findings of fact and whether its conclusions of law are not erroneous.” 6 We

review questions of law de novo. 7

       (3)    Johnson argues that the Superior Court erred by denying his claim of

ineffective assistance of counsel because trial counsel allegedly failed to

1
  466 U.S. 668 (1984).
2
  Hoskins v. State, 102 A.3d 724, 730 (Del. 2014).
3
  Id.
4
  Strickland, 466 U.S. at 694.
5
  Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
6
  Id.
7
  Id.
                                              2
adequately cross examine Gregory Napier, one of Johnson’s co-conspirators,

concerning possible future benefits Napier would receive under a substantial

assistance agreement with the State. Napier accepted a plea bargain where he

agreed to testify against Johnson in exchange for a lighter sentence. Later, Napier

entered into a substantial assistance agreement in which the State agreed to file a

motion in the future to recommend a reduction in Napier’s sentence to five years in

exchange for his cooperation in other cases.

       (4)    Johnson relies on Moore v. Secretary Pennsylvania Department of

Corrections, where the Third Circuit found that trial counsel’s performance was

unreasonable because he failed to impeach a key witness about the reduction in his

prison sentence and reduced charges secured in exchange for his testimony. 8

Unlike Moore, where trial counsel failed to undermine the key witness’s

credibility, Johnson’s trial counsel did cross examine Napier extensively about his

plea bargain. Specifically, trial counsel brought out on cross-examination that

without the plea agreement and lighter sentence, Napier would face potential

murder, robbery, firearm, and conspiracy charges, carrying sentences of life in

prison plus eight years or death. Trial counsel adequately impeached Napier on the

plea agreement, which served to undermine Napier’s credibility as a witness.



8
  457 F. App’x 170, 182 (3d Cir. 2012). In Moore, the trial counsel failed to raise that the
witness’s potential prison exposure was reduced from 60 to 20 years, and the charge against him
reduced from first to third-degree murder in exchange for his cooperation. Id.
                                              3
      (5)    Even if Johnson could demonstrate that the failure to question Napier

about his substantial assistance agreement was objectively unreasonable, he has not

shown how the result of his trial would have been different.           Both parties

questioned Napier about his plea agreement, and the jury was made aware that he

had already received a lighter sentence in exchange for his truthful testimony.

Further examination about the substantial assistance agreement would have been

cumulative. The State had also not sought a sentence reduction at the time of trial.

The Superior Court did not err in finding that Johnson failed to meet either prong

of the Strickland standard.

      (6)    Johnson next argues the Superior Court erred in denying his

Strickland claim for trial counsel’s failure to object to the admission under 11 Del.

C. § 3507 of Napier’s out-of-court statement. Johnson claims the statement was

involuntary. When Napier was brought in for questioning, the police suggested

things would become more difficult for his family if he did not cooperate. Napier

then confessed his involvement and identified Johnson as a co-conspirator.

      (7)    Under 11 Del. C. § 3507, “the voluntary, out-of-court prior statement

of a witness who is present and subject to cross-examination may be used as

affirmative evidence with substantive independent testimonial value.” According

to the statute, the statement must be voluntary. Prior to any questioning by the

detective, Napier was given a Miranda warning.           During the interview, the


                                         4
detective did bring up Napier’s children and family, but he did not threaten them or

threaten to take them away. He simply suggested that Napier cooperate with

police to avoid a greater burden on his family. Napier also testified at trial that his

statement was voluntary. 9 The Superior Court did not err in finding that trial

counsel’s failure to object to the admission of Napier’s § 3507 statement was

objectively reasonable and did not prejudice Johnson.

       (8)    Johnson next argues that the Superior Court erred in denying his claim

of ineffective assistance of counsel for failing to request a mistrial when the police

officer who interviewed Johnson after his arrest testified that Johnson “terminated

the interview.” According to Johnson, the answer implied that Johnson asked for

an attorney, which created an inference of guilt.

       (9)    A mistrial is appropriate “only when there is manifest necessity or the

ends of public justice would be otherwise defeated.”10 “The remedy of a mistrial is

mandated only when there are no meaningful and practical alternatives to that

remedy.” 11 The Superior Court examined trial counsel’s lack of objection under

the three-prong test articulated in Hughes v. State and Hunter v. State: (1) the

closeness of the case; (2) the centrality of the issue affected by the alleged error;




9
  See Gray v. State, 2015 WL 5926151, at *5 (Del. Oct. 9, 2015) (witness statement admissible
under § 3507 when witness testified his statement was voluntary).
10
   Smith v. State, 963 A.2d 719, 722 (Del. 2008) (internal quotations omitted).
11
   Revel v. State, 956 A.2d 23, 27 (Del. 2008) (internal quotations omitted).
                                             5
and (3) the steps taken to mitigate the effects of the error. 12 The Superior Court

found that the comment did not require a new trial. We agree.

       (10) When questioning the police officer, the prosecutor asked if Johnson

“terminated the interview,” to which he replied “yes.” 13 Trial counsel did not

object but instead requested a sidebar conference to avoid drawing more attention

to the comment. Trial counsel’s strategic decision not to object was a reasonable

trial strategy. When the prosecutor again stated during closing argument that

Johnson “ended the interview,” trial counsel objected and the court overruled the

objection. We agree with the trial court’s analysis that the State’s comment was

general enough not to imply guilt on Johnson’s behalf, negating the need for a

mistrial. Therefore, counsel’s failure to object was not objectively unreasonable.

       (11) Johnson also contends that the Superior Court erred in denying his

claim of ineffective assistance of counsel for failure to investigate Jamal, an

unidentified individual who Johnson (and only Johnson) alleges was at the scene of

the crime and may have been helpful to his case. 14 Trial counsel took steps to

locate Jamal by hiring a private investigator, but could not locate him. 15 The State

also had no information about Jamal. To render effective representation, trial


12
   Hunter v. State, 815 A.2d 730, 737-38 (Del. 2002); Hughes v. State, 437 A.2d 559, 571 (Del.
1981).
13
   App. to Opening Br. at 121 (Det. Harris’ Trial Test.).
14
   Johnson has also not satisfied the prejudice prong of Strickland by showing a reasonable
probability that more information about Jamal would have led to a different result at trial.
15
   App. to Opening Br. at 131 (Aff. of Michael C. Heyden, Esq. in Response to R. 61 Pet.).
                                              6
counsel was not required to secure the testimony of every conceivable witness.16

In this case, he took reasonable steps to locate Jamal, but was unsuccessful. His

lack of success does not render his performance deficient.

       (12) Johnson next argues that the Superior Court erred in denying his claim

that the State committed a Brady violation by failing to disclose information about

Jamal. The Superior Court found Johnson’s Brady violation procedurally barred

under Rule 61(i)(3), 17 because he failed to assert the ground for relief in the

proceedings leading to his conviction. Johnson also failed to meet the miscarriage

of justice exception to the procedural bar which requires a colorable Brady

violation claim. 18

       (13) A Brady violation occurs when there is “suppression by the

prosecution of evidence favorable to the accused . . . where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” 19 This Court has made clear that:

       [i]n order for the State to discharge its responsibility under Brady, the
       prosecutor must disclose all relevant information obtained by the
       police or others in the Attorney General’s Office to the defense. That
       entails a duty on the part of the individual prosecutor “to learn of any


16
   Outten v. State, 720 A.2d 547, 552-53 (Del. 1998) (“That other witnesses might have been
available, alone, is insufficient to prove ineffective assistance of counsel.”); State v. Jackson,
2014 WL 4407844, at *7 (Del. Super. Sept. 3, 2014), aff’d, 2015 WL 5679639 (Del. Sept. 25,
2015).
17
   Super. Ct. Crim. R. 61(i)(3).
18
   Super. Ct. Crim. R. 61(i)(5).
19
   Brady v. Maryland, 373 U.S. 83, 87 (1963).
                                                7
       favorable evidence known to the others acting on the government’s
       behalf in the case, including the police.” 20

There are three components to a Brady violation: “(1) evidence exists that is

favorable to the accused, because it is either exculpatory or impeaching; (2) that

evidence is suppressed by the State; and (3) its suppression prejudices the

defendant.”21

       (14) Johnson has not established a colorable claim that the State committed

a Brady violation. The Superior Court found that “the detective involved with the

case testified on cross-examination that he attempted to track Jamal down but was

unable to, and did not know anything other than his first name.” 22 Moreover, the

detective testified that he did not obtain Jamal’s cell phone number and that there

was no other evidence that led him to any new suspects. Johnson has not shown

the existence of other evidence related to Jamal that could have been suppressed by

the State. Therefore, the Superior Court properly denied the Brady claim.

       (15) Johnson next claims that the alleged errors cumulatively resulted in an

unfair trial. Where there are multiple errors in a trial, this Court weighs their

cumulative effect to determine if, combined, they are “prejudicial to substantial




20
   Wright v. State, 91 A.3d 972, 988 (Del. 2014) (quoting Kyles v. Whitley, 514 U.S. 419, 438
(1995)).
21
   Starling v. State, 882 A.2d 747, 756 (Del. 2005).
22
   Johnson, 2015 WL 1059198, at *5.
                                             8
rights [so] as to jeopardize the fairness and integrity of the trial process.” 23

Because all of Johnson’s assignments of error are without merit, his claim of

cumulative error also fails.

       (16) Johnson’s final claim is that the Superior Court erred in denying his

request for an evidentiary hearing for his claims of (a) ineffective assistance of

counsel for failure to object to the admission of Napier’s 3507 statement; and (b) a

Brady violation. The Superior Court has discretion to determine whether to hold

an evidentiary hearing. 24 “It is settled that the Superior Court is not required to

conduct an evidentiary hearing for a Rule 61 motion if, on the face of the motion, it

appears that the petitioner is not entitled to relief.” 25 The Superior Court did not

abuse its discretion in denying Johnson’s motion for an evidentiary hearing. The

record was sufficient to establish both that Napier’s statement was voluntary and

that Johnson could not make a colorable Brady claim for evidence that did not

exist. Therefore, an evidentiary hearing was unnecessary.

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

Court is AFFIRMED.

                                                  BY THE COURT:

                                                  /s/ Collins J. Seitz, Jr.
                                                         Justice
23
   Hoskins, 102 A.3d at 735 (quoting Turner v. State, 5 A.3d 612, 615 (Del. 2010)); Wright, 91
A.3d at 993-94.
24
   Super. Ct. Crim. R. 61(h)(1).
25
   Hawkins v. State, 839 A.2d 666 (Del. 2003) (Table).
                                              9
