IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
Plaintiff,

V. Cr. ID No. 1602015453A&B
RONALD JACKSON,
Defendant.

Submitted: May 13, 2020
Decided: June 22, 2020

COMMISSIONER’S [REDACTED]! REPORT AND RECOMMENDATION
THAT DEFENDANT’S AMENDED MOTION FOR POSTCONVICTION
RELIEF SHOULD BE DENIED AND DEFENDANT’S REQUEST FOR AN
EVIDENTIARY HEARING SHOULD BE DENIED

Nichole W. Warner, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State of Delaware.

Natalie S. Woloshin, Esquire, Woloshin, Lynch & Associates, P.A., counsel for
Defendant.

MAYER, Commissioner

 

' The Court entered an Order approving Defendant’s request to seal certain confidential
information, See D.I. # 81.
This 22" day of June, 2020, upon consideration of Defendant’s Amended

Motion for Postconviction Relief (the “Motion”), I hereby recommend as follows:

BACKGROUND

On February 13, 2016, Ronald Jackson (“Defendant”) was at the apartment of
Tyrone Roberts (“Roberts”), and the two had a dispute. Roberts called 911 and
reported that Defendant threatened to kill him and fired a gun at him inside the
apartment. Defendant does not dispute that he was at the apartment, but claimed the
apartment already had a bullet hole in a window, a shot occurred outside, Roberts
was high on PCP and accused Defendant of trying to kill him. Around this same
time, officers wearing body cameras were on patrol nearby and heard a shot. They
saw Defendant in the area and gave chase. Defendant ran back toward the apartment
where he was eventually apprehended on the exterior stairway. While pursuing
Defendant, the officers observed Defendant throw something that appeared to be a
gun and they later recovered a handgun in that area. Defendant testified that he was
not the man they saw running. The State did not recover fingerprints, DNA or
gunshot residue from the gun. They also did not recover discharged bullets or spent
shell casings in the apartment.

Defendant was charged with Possession of a Firearm by a Person Prohibited
(PFBPP), Possession of Ammunition by a Person Prohibited (PABPP), Carrying a

Concealed Deadly Weapon (CCDW), Receiving a Stolen Firearm, Aggravated

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Menacing, Possession of a Firearm During the Commission of a Felony (PFDCF) (2
counts), Reckless Endangering First Degree, Offensive Touching, Criminal
Mischief, Resisting Arrest and Criminal Impersonation.

The Court granted a motion to sever the PFBPP and PABPP charges and the
remaining case proceeded to a jury trial on November 15, 2016.2 The jury found
Defendant guilty of all remaining charges. After a bench trial, the Court found
Defendant guilty of the “person prohibited” charges. On February 17, 2017, the
Court granted the State’s Motion to Declare Defendant an Habitual Offender and he
was sentenced to a total of 60 years at Level V, suspended after 35 years. Defendant
appealed and the Supreme Court affirmed his conviction.’

On October 19, 2018, Defendant filed a pro se Motion for Postconviction
Relief. The Court appointed counsel to represent Defendant and post-conviction
counsel filed an Amended Motion for Postconviction Relief (the “Motion”).° In
summary, the Motion presents the following ineffective assistance of counsel
claims: (1) Trial Counsel failed to properly investigate the scene; (2) Trial Counsel

failed to effectively discredit the victim’s testimony; (3) Trial Counsel failed to

 

* The State entered a nolle prosequi on the Receiving Stolen Firearm charge and the Court
dismissed the Offensive Touching charge.

> Jackson y. State, 2018 WL 936845 (Del. Feb. 16, 2018) (hereinafter “Jackson I’).
* DL. #32.

> DL. #s 45, 54.
effectively challenge the ShotSpotter evidence; and (4) the cumulative errors justify
relief. Trial Counsel filed an Affidavit in response,° the State filed a Response in
opposition,’ and Defendant filed a Reply. Briefing is now complete and for the
reasons set forth below, I recommend that the Court deny the Motion.
Defendant’s Motion for Postconviction Relief
The Court must first determine whether there are any procedural bars to the
motion before considering the merits of the claims.’ This is Defendant’s first timely
filed motion under Superior Court Criminal Rule 61.'° The other procedural bars
likewise do not apply because ineffective assistance of counsel claims cannot be
raised at any earlier stage in the proceedings and are properly presented by way of a
motion for postconviction relief.'' The fact that counsel did not raise an argument

or objection during the trial, or on appeal, does not bar a defendant from alleging

 

° DAI. #55.
’ DL. # 60.
§ DL #63.
” Younger v. State, 580 A.2d 552, 554 (Del. 1990).

'° Defendant’s first motion, having been filed within one year of the Supreme Court’s Mandate
on direct appeal, is timely. Super. Ct. Crim. R. 61(m)(2) and Super. Ct. Crim. R. 61(i)(1).

'! Whittle v. State, 2016 WL 2585904, at *3 (Del. Apr. 28, 2016); State v. Evan-Mayes, 2016
WL 4502303, at *2 (Del. Super. Aug. 25, 2016).

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that counsel’s failure amounted to ineffective assistance.'2 Defendant’s Motion is

not procedurally barred.

I. Trial Counsel’s Investigation was Reasonable
Defendant first argues that if Trial Counsel had properly investigated the
scene, she would have realized that the State’s theory of the case was not plausible.
Through Post-Conviction Counsel, Defendant hired an investigator.'? Defendant
now argues that: (1) it was not possible for him to have fired the gun inside the
apartment, fled down the alley and then returned back to the apartment building in
the time that elapsed between the shot and apprehension; and (2) the sound of the
shot reflected on the body cameras was consistent with a shot that was fired outside,
rather than inside an apartment.
Trial Counsel attests that:
In representing Defendant, Trial Counsel thoroughly
reviewed all documents and discovery provided by the
State, including Body Worn Camera video, ShotSpotter
evidence, photographs, statements, surveillance video and
police reports. Trial Counsel challenged the State’s
evidence during trial, including cross-examining the

officers on what they heard, details on who was seen
running, where the defendant was seen and taken into

 

'2 See Malloy v. State, 2011 WL 1135107, at *2 (Del. Mar. 28, 2011); Brodie v. State, 2011 WL
927673, at *1 (Del. Super. Mar. 17, 2011); State v. Ross, 2004 WL 2735515, at *2 (Del. Super.
Nov. 22, 2004).

'3 Defendant retained the services of Investigator William Browne, a former Captain with the
Wilmington Police Department (“Browne”).
custody, where the gun was recovered, how much time had
elapsed between when the individual was running and
when Defendant was seen on the stairway, among other
things. Upon Trial Counsel’s recollection of the evidence
and trial strategy, Trial Counsel did not believe that there
was a need to further investigate the crime scene in order
to present an effective strategy at trial.“

In order to prevail on an ineffective assistance of counsel claim, a defendant
must show that his counsel’s representation fell below an objective standard of
reasonableness and the deficiencies in counsel’s representation caused the defendant
actual prejudice.'° When reviewing such a claim, the Court must analyze counsel’s
conduct based upon all of the facts of the case and avoid peering through the lens of
hindsight.’® Defendant must also show that any alleged errors were so serious that
his counsel was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment.'’ “A defense attorney may not be faulted for a reasonable

miscalculation or lack of foresight or for failing to prepare for what appear to be

remote possibilities.”'® Great weight and deference are given to tactical decisions

 

'4 Affidavit at ¥ 5.

'S Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hitchens v. State, 757 A.2d 1278
(Del. 2000).

'© State v. Wright, 653 A.2d 288, 295 (Del. Super. 1994),
'7 State v. Finn, 2012 WL 1980566, at *4 (Del. Super. May 23, 2012).

'8 7d., at *4 (holding defense counsel provided active and capable advocacy when evidence against
Defendant was overwhelming) (citing Harrington v. Richter, 131 S. Ct. 770, 787-792 (2011)).
made by the trial attorney.'? If a defendant can establish error by counsel, he must
also show that but for the errors, there is a reasonable probability that the outcome
of the proceedings would have been different.2? In doing so, Defendant must
overcome a strong presumption that counsel’s conduct was reasonably professional
under the circumstances.”! “Rule 61 is intended to correct errors in the trial process,
not to allow defendants unlimited opportunities to relitigate their convictions.”
With respect to Defendant’s first claim, trial counsel has a general duty to
investigate, not a duty to investigate all potentially helpful evidence.?? The Court
will defer to trial counsel’s strategic choices as long as counsel conducted a fair
investigation of the applicable law and facts.24 Importantly, the United States

Supreme Court has strongly cautioned that the courts must avoid the “distorting

 

'? State v. Miller, 2013 WL 871320, at *4 (Del. Super. Feb. 26, 2013).
°° Strickland, 466 U.S. at 687-88, 694; Hitchens y. State, 757 A.2d 1278 (Del. 2000).

*! State v. Wright, 653 A.2d at 293-94 (citations omitted).

2 Ploof v. State, 75 A.3d 811, 820 (Del. 2013).

3 Alston v. State, 2015 WL 5297709, at *2-3 (Del. Sept. 4, 2015) (trial counsel’s investigation
based upon review of police reports and eyewitness testimony was adequate).

*4 Purnell v. State, 106 A.3d 337, 342 (Del. 2014), quoting Hoskins v. State, 2014 WL 4722716,
at *3 (Del. Sept. 22, 2014); Gattis v. State, 697 A.2d 1174, 1184 (Del. 1997), citing Riley v. State,
585 A.2d 719, 727 (Del. 1990) (quoting Crisp v. Duckworth, 7th Cir., 743 F.2d 580, 583 (1984)
(“Effective representation by counsel depends upon ‘adequate investigation and pre-trial
preparation.’”).
effects of hindsight” or grading counsel’s performance.” Otherwise, a defendant
could too easily challenge a particular strategic choice simply because the effort
failed to garner the relief sought.*° Further, there are “countless” ways by which
counsel may defend a client, and no two advocates may necessarily see the case the
same way. As such, defense counsel has “wide latitude in making tactical decisions”
and enjoys a strong presumption that his/her conduct was the result of sound trial
strategy.’ “Effective representation does not require that the Defendant prevail nor
that his counsel doesn’t make mistakes.”*® The Court must review all of the
circumstances, and after applying a heavy measure of deference to counsel’s
judgments, determine whether the decisions made were reasonable.”?

In the present case, although Defendant’s investigator presents an alternative
version of the events, he did not unearth any missed available evidence that would

have assisted the defense at the time of trial. Rather, the investigator based his

 

5 Ploof v. State, 75 A.3d 811, 821-825, citing Strickland, at 689-690, 687.

*6 State v. Fletcher, 2015 WL 2438271, at *5 (Del. Super. May 19, 2015); State v. Gattis, 2011
WL 1458484, at *9 (Del. Super. Mar. 22, 2011) (the court must avoid judging effectiveness of trial
strategy simply because the theory advanced was unsuccessful). See also, State v. Wright, 1998
WL 734771, at *8 (Del. Super. Sept. 28, 1998) (finding that although trial counsel’s strategy was
risky, it was not unreasonable nor ineffective).

*7 State v. Fletcher, 2015 WL 2438271, at *5, citing Harrington v. Richter, 131 S.Ct. 770, 788—
789 (2011).

8 State v. MacDonald, 2007 WL 1378332, at *8 (Del. Super. May 21, 2007).

29 Strickland, at 691.
analysis on the officers’ testimony at trial that it was 1-2 minutes between hearing
the shot and seeing Defendant on the top floor of the apartment.*° Defendant now
seeks to do what Strickland specifically forbids — an attack on Trial Counsel’s
performance with the benefit of hindsight. The test is not what Trial Counsel should
have done had she had the benefit of the full trial record before trial, but rather what
was objectively reasonable at the time of trial.

Defendant admitted he was at the apartment, and the officers saw Defendant
in the area. On appeal, the Supreme Court enumerated six categories of evidence
from the trial and explained that this was “not a close case.”?! Trial Counsel
zealously attacked the State’s evidence by challenging whether Defendant was the
person seen running in the alley, whether the gunshot occurred inside or outside the
apartment, and the absence of ballistic evidence. To grant relief simply because the
investigator now proffers another point of view, having the benefit of the trial record,
would vitiate the heavy deference given to counsel at the time of counsel’s conduct.*”

For these reasons, Trial Counsel’s strategy was not deficient.

 

39 See A640 at 7 8.
31 Jackson I, at *6.
3? See Strickland, at 689 (“A fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”).
Il. SEALED BY ORDER OF THE COURT D.I. # 81

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Ill. Trial Counsel Erred When Responding to the Hearsay Objection

Defendant next argues that Trial Counsel did not effectively manage a hearsay
objection. Defendant intended to testify that Roberts was high on PCP, erratic, and
screaming “Yo, why are you trying to kill me? Why are you trying to kill me.” The
State objected on the basis that the proposed testimony included inadmissible
hearsay. Through her Affidavit, Trial Counsel concedes that she should have voiced
the “excited utterance” or “present sense impression” exceptions to the hearsay bar
to admit the testimony.*? Defendant now claims that if he testified regarding
Roberts’ statements, then the jury would have been more likely to believe
Defendant’s version of events, including that he was inside the apartment when a
shot was fired outside.

Defendant’s argument is mere conjecture. First, the statement does not
confirm that the shot occurred outside the apartment. Second, the statement could
have easily convinced a jury that Defendant fired the gun at Roberts attempting to
kill him. Third, Defendant was able to testify that he believed Roberts was high on

PCP and that Roberts accused Defendant of trying to kill him. There is no reasonable

 

33 See D.R.E. 803(1) — (3).
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basis to believe that if this statement was presented to the jury that it would have
convinced the jury of Defendant’s innocence. Although Trial Counsel erred in
failing to identify the proper hearsay objection, Defendant has not established a
reasonable probability that if the error had not occurred, that the outcome of the case

would have been different.

IV. Defendant’s ShotSpotter Theory is Insufficient to Grant Relief

Defendant argues that Trial Counsel failed to effectively challenge the
ShotSpotter evidence. This issue, although re-framed an ineffective assistance of
counsel claim, was addressed by the Supreme Court. On appeal, Defendant argued
that his rights were violated because the State failed to call the preparer of the
ShotSpotter report at trial. The Supreme Court denied the claim citing Trial
Counsel’s strategic decision to elicit testimony that the report did not show whether
the shot was fired inside or outside the building. Despite this, Defendant urges the
Court to find that Trial Counsel’s tactical decision was ineffective because she did
not cross-examine the State’s witness with the fact that ShotSpotter detects up to
80% of “outdoor” shots and questioning about its inability to detect shots fired inside
would have significantly furthered the defense.

Defendant reads a singular line within the ShotSpotter Report to mean

ShotSpotter detects “only” outdoor gunshots. However, that line indicates that

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ShotSpotter detects 80% “of? outdoor incidents.** The preparer of the report was
not a witness at trial and according to the State, it would have demonstrated that
ShotSpotter is not limited to detection of outdoor gunshots. Defendant has not
convincingly demonstrated that the report excludes the detection of indoor gunshots
or that his new strategy would have changed the outcome of the proceedings. In
fact, on appeal, the Supreme Court stated, “[a]s to Jackson’s argument that a page of
the ShotSpotter report not admitted into evidence at trial clearly shows the gunshot
occurred outside of 201 North Madison Street, the document does not support this
argument.”*° Trial Counsel pointed out through cross-examination that ShotSpotter
could not identify whether the shot was fired from within or outside a building, nor
the apartment or room where the shot may have occurred. The evidence at trial
concluded that the shot occurred in the area of the apartment but did not confirm
whether the shot was fired inside or outside. Without any definitive means to attack
ShotSpotter’s findings at trial further, Trial Counsel’s strategy was objectively

reasonable.

Finally, Defendant argues that the cumulative effect of the multiple errors by

Trial Counsel prejudiced him and justify a new trial. However, as noted above, the

 

34 See A642.

35 Jackson I at *6.

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only error by Trial Counsel was the failure to raise a proper exception to the hearsay
objection. As that error did not result in prejudice to Defendant, his corresponding

argument of cumulative errors does not merit relief.

Defendant’s Motion for Evidentiary Hearing
Pursuant to Superior Court Criminal Rule 61(h), if it appears that an
evidentiary hearing is not desirable, the judge should dispose of the motion. I have
found no justification for an evidentiary hearing in this matter and the request should
be denied.
For all of the foregoing reasons, Defendant’s Amended Motion for
Postconviction Relief should be DENIED.

IT IS SO RECOMMENDED.

(CE

Commissioner Katharine L. Mayer

cc: Prothonotary
Nichole Warner, Esquire
Natalie Woloshin, Esquire

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