SUPERIOR COURT
oFTHE
STATE OF DELAWARE

E. SCOTT B RADL.EY

SUSSEX COUNTY COURTHOUSE
JuDGl-: l THE C|RCL.E, SU|TE 2
GEORGETOWN, DEL.AWARE 1994-7
TELEPHONE (302) 856-5256

December 7, 2018
Casey L. Ewart, Esquire

Patrick J. Collins, Esquire

Deputy Attorney General Collins & Associates
Department of Justice 716 North Tatnall Street, Suite 300
l 14 East Market Street Wilmington, DE 19801 ,_n
Georgetown, DE 19947 § wi
<-‘-'c)
sa am
RE: State of Delaware v. Christopher Clay ‘;’ §§
ID # 1408007714A -J §§
`U §§
Date Submitted: November 5, 2018 § §§
'_; 3

Dear Counsel:

This is my decision on Christopher Clay’s timely-filed Amended Motion for
Postconviction Relief. Clay Was convicted of Robbery in the First Degree,
Possession of a Firearm During the Comrnission of a Felony, Conspiracy in the
Second Degree, Tampering With Physical Evidence, and Resisting Arrest. Clay’s
convictions arose out of the robbery by him, Maurice Land and Booker Martin of the

Dollar General store in Georgetown, Delaware. l sentenced Clay to 49 years and six
months at supervision level 5, suspended after serving 40 years and six months at

supervision level 5 for probation. The Suprerne Court vacated Clay’s conviction for

Tampering With Physical Evidence, but affirmed his convictions as to the other four
charges.'
STATEMENT OF THE FACTS

Clay’s convictions arose out of an armed robbery of the Dollar General store
in Georgetown, Delaware. On August 9, 2014, an employee of the Dollar General
store in Georgetown, Delaware Was taking a register till to her office shortly before
9:00 p.m. As she entered her office, a man Wearing a black hat and a t-shirt that said
“Security” on the back approached her in her office While displaying a black
handgun. He ordered her to give him the money from the register till She had and
another till that Was in the office. After she did so, he told her to get on the ground.
The man then exited the store and the employee called the police.

Shortly after the robbery occurred, Corporal Joel Diaz of the Georgetown
Police Department observed three black males run across the Street. Corporal Diaz
testified that his attention Was initially drawn to the men because a series of robberies
had taken place in the area. As Corporal Diaz continued to observe the men, a call
came over his radio that a robbery had taken place at the Dollar General Store, Which
Was a quarter of a mile away from his location. The radio call described the suspect

as a black male dressed in all black and possibly armed With a handgun. Corporal

 

' Clay v. State, 164 A.3d 907 (Del. 2017).

2

Diaz realized that one of the three men that he was observing was dressed in all black.
The officer approached the men, rolled down his window and asked them to stop. At
first, the men ignored him, but when Corporal Diaz stopped and exited his vehicle,
one of the men, later identified as Christopher Clay, ran. Corporal Diaz radioed to
other officers to pursue Clay and ordered the other two men, later identified as
Maurice C. Land and Booker T. Martin, to stop.

Corporal DiaZ and another Georgetown Police officer, Officer Derrick
Calloway, were eventually able to detain Land and Martin. As Land was getting on
the ground, he removed his shirt, which was black with “Security” written across the
back in yellow letters. The officers also found a black baseball cap on the sidewalk
near where Land had been standing. At the time of his arrest, Land had a latex glove
and $81 in cash on his person. Martin had $897 in cash in his pocket in three bundles
that were folded and organized by denomination.

While Corporal Diaz and Officer Calloway were with Land and Martin, Officer
John Wilson was responding to Corporal Diaz’s call to pursue Clay. Officer Wilson
saw Clay running in the opposite direction of his car. He exited the vehicle and
began chasing Clay on foot. Clay continued to run, and Officer Wilson observed him
raise his hand into the air. Officer Wilson testified:

l didn’t know if [Clay] was going to run like he was going to turn or if

he was throwing something And I thought - I did think I saw something

leave his hand, but the lights are - it was dark; my overheads on my

police car are on; everything’s flashing.

Clay eventually got into a parked vehicle, and Officer Wilson ordered him out
of the vehicle at gunpoint. Clay had $280 in cash in his pocket, folded and organized
by denomination, and $1.17 in change. Officers later recovered a black handgun on
the opposite side of a fence near where Officer Wilson observed Clay making a
throwing motion.

Security footage from the Dollar General store showed Clay entering the store
with Land shortly before 9:00 p.m. Land went to the back of the store and into the
office, where surveillance cameras recorded him putting on a clear glove and taking
money out of an employee’s wallet. When the employee entered the office, Land
pointed a handgun at her and demanded the money from the register tills. He then
made her get on the ground, and he left the office, As Land was in the back of the
store, Clay placed several items on the counter. F our seconds after Land left the
Store, Clay followed without purchasing any of those items.2

A joint trial for Clay and his co-defendants was held. All three of the

 

2 All of the above facts Were taken verbatim from the Supreme Court’s decision in Clay v.
State, 164 A.3d 907, 911-12 (Del. 2017).

defendants were subsequently convicted at trial. Martin’s convictions, except for a
misdemeanor Resisting Arrest charge, were later vacated and dismissed pursuant to
a post-trial Motion for Judgment of Acquittal.
DISCUSSION
This is Clay’s first motion for postconviction relief and it was filed in a timely
manner. Clay argues that his trial counsel was ineffective because he (l) did not
renew his motion to sever when it became clear that Land’s trial counsel was going
to introduce testimony at trial regarding a number of robberies in Baltimore,
Maryland; (2) did not object to the testimony at trial regarding the robberies in
Baltimore, Maryland, or seek a mistrial when the testimony came in, or request a
limiting jury instruction regarding the testimony before the case went to the jury, or
appeal the admission of the testimony to the Supreme Court; and (3) did not file a
motion for a new trial after Land submitted a post-trial affidavit stating that Clay and
Martin had nothing to do with the robbery. Clay’s trial counsel and the State have
filed affidavits in response to Clay’s allegations
Clay submitted four different arguments in his pro se motion for postconviction
relief. I then appointed postconviction counsel for Clay. Clay’S postconviction
counsel did not advance any of them. Therefore, I have considered Clay’s four pro

se arguments to be abandoned The United States Supreme Court has established the

proper inquiry to be made by courts when deciding a motion for postconviction
relief.3 In order to prevail on a claim for ineffective assistance of counsel pursuant to
Superior Court Criminal Rule 61, the defendant must engage in a two-part analysis.4
First, the defendant must show that counsel’s performance was deficient and fell
below an objective standard of reasonableness5 Second, the defendant must show
that the deficient performance prejudiced the defense.6 Further, a defendant “must
make and substantiate concrete allegations of actual prejudice or risk summary

dismissal.”7

To establish prejudice, the defendant must show that “there is a reasonable
probability that, but for counsel’S unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine the outcome.”8 To establish a reasonable probability of a different result,

the defendant needs to “show a ‘probability sufficient to undermine the confidence

 

3 Strl`ckland v. Washington, 466 U.S. 668 (1984).

4 Strickland, 466 U.S. at 687.

5 Ia'. at 687.

6 Ia'. at 687.

7 State v. Coleman, 2003 WL 22092724 (Del. Super. Feb. 19, 2003).

8 Slricklana’, at 694.

in the outcome,’ a standard lower than ‘more likely than not.”’9 Moreover, “[t]he
benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.”'° It is also necessary that the
defendant “rebut a ‘strong presumption’ that trial counsel’ s representation fell within
the ‘wide range of reasonable professional assistance,’ and this Court must eliminate
from its consideration the ‘distorting effects of hindsight when viewing that
representation ’ ”l 1

Claim One - Motion to Sever

Clay argues that his trial counsel was ineffective because he did not renew his
motion to sever Clay’s trial from that of his co-defendants when it became apparent
before trial that Land’ s counsel was going to introduce at trial evidence of supposedly
similar robberies in Baltimore. Clay argues that this evidence allowed the jury to

conclude that Clay was part of a gang that had committed a series of robberies in

Baltimore and also had robbed the Georgetown Dollar General store,

 

9 Ploofv. Szare, 75 A.3d 840, 852(De1. 2013).
10 Cooke v. State, 977 A.2d 803, 840 (Del. 2009) (quoting Strickland, 466 U.S. at 686).
" Coleman, 2003 WL at *2, quoting Stricklana', 466 U.S. at 689.

7

The Baltimore Robberies - Pre-trial
I held a pre-trial hearing regarding issues involving the authenticity of the
videotape of the Georgetown Dollar General store robbery. At that hearing, Karl
Woody, a Dollar General store loss prevention manager, testified as follows regarding
the videotape:
Well, what stuck out with me was the one gentlemen had
security on his back. I was working a string of robberies in
the Baltimore area with the same kind of get-up. So that
kind of stuck with me. I was really concerned, was this the
same guys hitting my Baltimore stores. So that kind of
stuck in my mind on some of the details.12
Land’s counsel made it clear before trial that he was going to use this evidence
at trial to argue that the person who had robbed the stores in Baltimore had also
robbed the Georgetown Dollar General store and that it was Land’s misfortune to be
similarly dressed as the robber and near the store right after the robbery.
Clay’s trial counsel states that he did not renew his motion to sever because he
thought it would have been frivolous to do so. Clay’s trial counsel notes that
Woody’s pre-trial statement involved robberies that (l) did not implicate Clay, (2)

did not involve more than one robber, (3) did not involve in-store and out-of-store

lookouts, and (4) did not involve a robber using a gun. Quite simply, Clay’s trial

 

‘2 Al92 (All references to the record herein refer to the Appendix to Amended Motion
for Postconviction Relief).

counsel was not concerned about the Baltimore robberies because they were not at
all like the Georgetown Dollar General store robbery and, as such, did not implicate
Clay.

Clay’s trial counsel is correct about the differences in the robberies. The
Georgetown Dollar General store robbery was very different than the Baltimore
robberies. lt involved three people, one of whom had a handgun, and two others that
acted as lookouts. Land robbed the store clerk using a handgun. Clay acted as the
in-store lookout. Martin acted as the out-of-store lookout. Clay’s defense was that
he simply had nothing to do with the robbery.

Superior Court Criminal Rule 8(b) provides that “[t]wo or more defendants
may be charged in the same indictment or information if they are alleged to have
participated in the same act or transaction or in the same series of acts or transactions
constituting an offense or offenses. Such defendants may be charged in one or more
counts together or separately and all of the defendants need not be charged in each
count.” The Delaware Supreme Court set forth four factors that a trial court should
consider when determining whether to sever defendants: “(l) problems involving a
co-defendant’s extra-judicial statements; (2) an absence of substantial independent
competent evidence of the movant’s guilt; (3) antagonistic defenses as between the

co-defendant and the movant; and (4) difficulty in segregating the State’s evidence

as between the co-defendant and the movant.”'3

I would not have granted a Motion to Sever if Clay’ s trial counsel had filed one
because no factor favors severance. The four factors that address severance are the
following:

(l) Problems lnvolving a Co-Defe_nd.ant`s Extra-Judicial Statements.

This factor is not implicated at all because no such statements were going to
come into evidence.

(2) An Absence of Substantial Independent Evidence of the Movant’s Guilt

This factor is not implicated at all because there was a great deal of substantial
independent evidence of Clay’s guilt. The earlier motions to sever filed by Clay and
Martin were denied because all of the evidence against Land, Clay and Martin was
going to come in against Clay and Martin even if they were tried separately. This was
a logical consequence of a conspiracy, particularly so for Clay since he was an
accomplice. Thus, severance made no sense. There was video evidence of Clay’s
involvement in the robbery. There were also a number of police officers who
witnessed Land, Clay and Martin together after the robbery. The video shows the
following: Clay and Land entered the store together and both immediately turned left

after they entered. Clay actually walked into the store in front of Land. Land is

 

13 Floua'z`otis v. State, 726 A.2d 1196, 1210 (Del. 1999).

10

wearing a black baseball cap and white sunglasses. Land went up and down an aisle
a few times and then went to the office at the back of the store. Land then put on a
clear glove and went through a purse and took money out of it. Land went in and out
of the office. Land then followed a store clerk carrying a cash register till into the
office. Land used a gun to force the store clerk to give him money from the till. The
clerk took money out of the till apparently in denomination order and handed it to
Land. Land then walked out of the office, leaving the store clerk behind. While Land
was robbing the store clerk, Clay was talking on a cell phone and walking around the
front of the store by the two cashiers and placing items on the counter for purchase.
Once Land finished robbing the store clerk he walked past Clay and out of the store.
Clay walked out of the store only four seconds behind Land and without purchasing
any of the items he put on the counter. The robbery took less than five minutes.
Only minutes after the robbery Georgetown police officer Diaz saw Land, Clay
and Martin running across the street together. Officer Diaz asked the three men to
stop. Land and Martin eventually did stop, but Clay ran away. Officer Diaz detained
Land and Martin and asked for help from other officers in catching Clay.
Georgetown police officer John Wilson saw Clay running and throwing something
over a fence. Officer Wilson captured Clay. The police found a handgun on the other

side of the fence. Clay had $280 in his pants folded and arranged by denomination.

ll

Martin had $897 in his pocket in three bundles that were folded and arranged by
denomination. Land had a black shirt that had “Security” on it. The police also
found a black baseball cap near where Land was captured. The police found a latex
glove and $81 on Land’s person. Land and Clay were in the store during the robbery
and were captured together with Martin only minutes after the robbery with the gun
that was used by Land to rob the store clerk and the money that Land took from the
store clerk. This is powerful evidence of Clay’s guilt.

(3) Antagmiistic Defenses As Between The Co-Defendant and Movant.

This factor is hardly implicated. Land’s defense was that he was not the man
in the video. Clay’s defense is that he had nothing to do with the robbery and was
just a customer in the store. These are not antagonistic defenses. The jury could have
believed both defenses. The jury did not have to accept one defense and reject the
other. There is nothing antagonistic or conflicting about Land not being the robber
and Clay not being involved in the robbery at all.

4. Difficulty In Segregating The State’s Evidence As Between The Co-
De fendants and Movant.

This factor is not implicated at all. As to the actual robbery, what Land and
Clay did is captured on video. Land, Clay and Martin were captured together only

minutes after the robbery. Eyewitnesses testified as to what each did and what each

12

had on them when they were captured.

As I noted before, none of the factors favor severance. Moreover, Woody’s
proposed testimony regarding the Baltimore robberies was not prejudicial to Clay
because the Baltimore robberies were so different from the robbery of the
Georgetown Dollar General store that they did not implicate Clay. Clay’s argument
that the jury found him guilty of the Dollar General store robbery because it believed
that he was a part of a gang that had also committed the robberies in Baltimore is
simply not based on the facts. There was no testimony about a gang committing
robberies in Baltimore. Woody’s testimony was so vague and general as to be
worthless. lt did not implicate Clay at all. The jury convicted Clay because of the
overwhelming evidence linking him to the Georgetown Dollar General store robbery.
Excluding Woody’s testimony about the Baltimore robberies would not have changed
the result in this case. Trial counsel’s performance was neither deficient nor did it
prejudice the defense.

Claim Two - Obiecti¢;)n1 Mistrial.. Limiting Instruction and Al)neal.

Clay argues that at trial his trial counsel should have (1) objected to Woody’s
proposed testimony, (2) requested a mistrial after Woody testified, (3) requested a
limiting instruction regarding Woody’ s testimony arguing the inapplicability of it to

Clay, and (4) filed an appeal addressing the admissibility of Woody’s testimony.

13

Once again, Clay argues that Woody’s testimony regarding the Baltimore robberies
led the jury to believe that Clay was part of a gang that robbed the stores in Baltimore
and also robbed the Georgetown Dollar General store. Clay’s trial counsel did not
do all the things at trial that Clay now argues that he should have done for the same
reason he did not renew his motion to sever. He simply was not concerned about
Woody’s testimony because the Baltimore robberies were so different as to the
robbery of the Georgetown Dollar General store as to be irrelevant. I agree.
The Baltimore Robberies - "l"rial

At trial Woody testified (1) that there had been a string of robberies in the
Baltimore area committed by a person wearing a shirt with “Security” on it, (2) that
there was a guy that hit a Dollar General store in the Baltimore area who was dressed
in all black, but was not wearing a shirt with the word “Security” on it, and (3) that
none of the defendants were involved in the robbery of the Dollar General store in
Baltimore.

Clay’ s problem was not Woody’ s trial testimony. Indeed, if anything, Woody’ s
trial testimony was irrelevant. Woody did not testify about a gang robbing the stores
in Baltimore. Woody did testify that none of the defendants were involved in the
Baltimore robberies. Clay’s problem was the evidence that did implicate him in the

robbery of the Georgetown Dollar General store, The video shows Land and Clay

14

going into the store together and immediately turning left together. The video shows
Land go to the back of the store and rob one of the store clerks with a gun. While
Land is doing that, the video shows Clay walking around the front of the store where
the cashiers are located and placing a few items on the counter for purchase. Lastly,
the video shows Land walk past Clay and out of the store with Clay exiting the store
four seconds behind Land without paying for and taking the items that he had put on
the counter. The video is powerful evidence of Clay’s involvement in the robbery.
However, the evidence gets even worse for Clay. Only minutes after Clay and Land
leave the store they and Martin are seen running across the street together. When
contacted by the police, Clay runs away from the other two and is seen throwing a
pistol over a fence. Once they are all arrested, the police have Clay and Land wearing
the clothes they had on during the video. Land had the shirt with “Security” on it that
is seen in the video. Land had the latex glove on his person that he used in the
robbery. Clay had the gun and some of the money. Martin had most of the money.
lt was this evidence that sealed Clay’s fate. All of this is powerful and overwhelming
evidence of Clay’s guilt. Clay, in his postconviction motion, simply ignores the
overwhelming evidence of his guilt. This was not a close case. Woody’s generalized
and non-specific testimony about factually different robberies in Baltimore did not

cause the jury to find Clay guilty. There is simply no reason to believe that. The

15

exclusion of Woody’ s testimony would not have changed the result in this case. Trial
counsel’s performance was neither deficient nor did it prejudice the defense.
Claim Three - Land’s Affidavit
Clay argues that his trial counsel was ineffective because he did not seek a new
trial after Land submitted an affidavit absolving Clay of the responsibility for the
robbery. Land submitted the following affidavit before sentencing:
And state the facts in writing this affidavit of what
l’ve been accused of or convicted of, that these Men
Booker Martin and Christopher Clay had nothing to do
with it and l never seen these Men before until that night.
I never gave Mr. Martin any money or given Mr. Clay a
gun. The night of the Robbery of the Dollar General Store,
l am very sorry for leting [sic] this go as far as it did So
[sic] l ask that all charges against them be drop. [sic] This
is my own choice because it is the right thing to do.14
Clay’ s trial counsel was aware of Land’ s affidavit and attempted to talk to Land
about it, but Land’s trial counsel would not let him. Ultimately, Clay’s trial counsel
took no action, believing that Land’s affidavit was worthless. Clay’s trial counsel
concluded that Land’s affidavit was worthless because (l) Land does not
acknowledge his involvement in the robbery, which might have lent his affidavit

some credibility, and (2) Land does not explain why Clay and Martin had nothing to

do with the robbery but somehow ended up with the gun and money.

 

14 A1054.
16

Clay argues that Land’s affidavit is newly discovered evidence and that it
forms the basis for a new trial. Land’s affidavit is neither. lt is not newly discovered
evidence because it did not exist until after the trial. The allegations in the affidavit,
as far as anyone knows, were never made until post-trial. Moreover, Land’s affidavit
is just not credible. Land does not accept responsibility for the robbery and he does
not explain why Clay and Martin had nothing to do with the robbery even though
Clay was obviously an in-store lookout and Clay and Martin ended up with the gun
and most of the stolen money. Quite simply, Land’s affidavit is just a conclusory
statement that fails to explain away the evidence against Clay. l certainly would not
have given Clay a new trial based on Land’s affidavit.15 Trial counsel’s performance
was neither deficient nor did it prejudice the defense.

CONCLUSION

l have concluded that Christopher Clay’s trial counsel acted properly and that
the exclusion of Karl Woody’s testimony about the Baltimore robberies would not
have changed the result in this case. lt was the overwhelming evidence of Clay’s

involvement in the Georgetown Dollar General store robbery that sealed Clay’s fate

 

15 Clay wanted a hearing on Land’s affidavit l see no reason to have one. Land still
denies his involvement in the robbery of the Georgetown Dollar General store and is pursing
post-conviction relief. Thus, l conclude it unlikely that Land would offer anything further at a
hearing.

17

and not Woody’s vague testimony about robberies in Baltimore that were committed
in a completely different manner. l have also concluded that Clay’s trial counsel
acted properly regarding Land’s affidavit and that the affidavit would not form the
basis for a new trial for Clay because its allegations are simply not credible.
Christopher Clay’s Motion for Postconviction Relief is DENIED.
Very truly yours,
MM
E. Scott Bradley

cc: Prothonotary

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