      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE,                       )
                                         )
       v.                                )
                                         )
SOLOMON COLLINS,                         ) ID NO. 0910019961
                                         )
      Defendant.                         )


                     Date Submitted: October 30, 2014
                      Date Decided: January 30, 2015

       On Defendant’s Motion for Post Conviction Relief. DENIED.


                                     ORDER



Patrick J. Collins, Esq., 8 East 13th Street, Wilmington, Delaware, 19801.
Attorney for Defendant.


Scott D. Goodwin, Esq., Deputy Attorney General, Delaware Department of
Justice, Carvel State Office Building, 820 N. French Street, Wilmington,
Delaware 19801. Attorney for the State.




Scott, J.
                                   Introduction

      Before the Court is Defendant Solomon Collins’ (“Defendant”) Motion for

Post Conviction Relief filed on September 16, 2013. The Court has reviewed the

parties’ submissions. For the following reasons, Defendant’s Motion for Post

Conviction Relief is DENIED.

                                   Background

      Defendant was tried before a jury in March of 2011. Violet Gibson and

Shakira Romeo – both eye witnesses to the offense – testified for the State at

Defendant’s trial. Both witnesses had also been interviewed by Detective Conner

of the Wilmington Police Department after the incident. However, the statements

the witnesses gave to Det. Conner conflicted with their in-court testimony. Det.

Conner also testified for the State at Defendant’s trial, and both witnesses’ out-of-

court statements to Det. Conner were admitted into evidence during his testimony,

over defense objection.

      The jury found Defendant guilty of Murder First Degree (non-capital), three

counts of Reckless Endangering First Degree, two counts of Possession of a

Firearm During the Commission of a Felony (PFDCF), and one count of

Possession of a Deadly Weapon by a Person Prohibited (PDWBPP) relating to the

shooting death of Tommear Tinnin.      On July 15, 2011, Defendant was sentenced

to life in prison at Level 5 on the Murder First Degree conviction and ten years in



                                      2
prison at Level 5 on the weapons conviction and six years in prison at Level 5 on

the Reckless Endangering convictions.

       On July 29, 2011, Defendant filed a direct appeal of his convictions with the

Delaware Supreme Court. The Delaware Supreme Court affirmed Defendant’s

convictions and sentence on direct appeal.

       On September 16, 2013, Defendant filed his first Motion for Post Conviction

Relief. On September 18, 2013, the Superior Court directed the Office of Conflict

Counsel to appoint counsel for Defendant for purposes of representation in his

Rule 61 Motion for Post Conviction Relief.

                                          Discussion

       As an initial matter, the Court finds that Defendant’s motion is not

procedurally barred under Del. Super. Ct. Crim. R. 61(i).1 The Court will now

address the merits of Defendant’s motion. To prevail on a claim of ineffective

assistance of counsel, a defendant must meet the two-pronged test established by

the United States Supreme Court in Strickland v. Washington.2 Under Strickland,

a defendant must show that (1) his counsel’s representation fell below an objective

standard of reasonableness, and (2) that the deficient performance prejudiced the

defense. 3 Counsel’s actions are afforded a strong presumption of reasonableness

1
  See Younger v. State, 580 A.2d 552, 554 (Del. 1990) (“This Court applies the rules of
procedural requirements before giving consideration to the merits of the underlying claim for
post conviction relief.”)
2
  466 U.S. 668 (1984).
3
  Id. at 687-88.
                                            3
because it is “all too easy for a court examining counsel’s defense after it has

proved unsuccessful” to succumb to the “distorting effects of hindsight.”4 The first

prong of Strickland therefore requires the use of an objective standard of

reasonableness based on prevailing professional norms when evaluating an

attorney’s conduct. 5 “[T]he mere fact that counsel failed to recognize the factual

or legal basis for a claim, or failed to raise the claim despite recognizing it does not

constitute” deficient performance. 6 The United States Supreme Court has stated

that “‘the purpose of the effective assistance guarantee of the Sixth Amendment is

not to improve the quality of legal representation …. [but] simply to ensure that

criminal defendants receive a fair trial.’” 7 Based on that policy, “[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.” 8                 A court must “judge the

reasonableness of counsel’s challenged conduct on the facts of the particular case,

viewed as of the time of counsel’s conduct.” 9 If the defendant fails to satisfy either

prong of the Strickland test, the ineffective assistance of counsel claim necessarily

fails.



4
  Id. at 689.
5
  Neal v. State, 80 A.2d 935, 942 (Del. 2013).
6
  Murray v. Carrier, 477 U.S. 478, 486-87 (1986).
7
  Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (quoting Strickland, 466 U.S. at 689).
8
  Pinholster, 131 S. Ct. at 1403 (citations omitted).
9
  Strickland, 466 U.S. at 690.
                                            4
       Once a defendant successfully demonstrates that his counsel’s conduct fell

below an objective standard of reasonableness, the Court then moves to the second

prong of the Strickland test. Under the second prong of Strickland, the Court will

only set aside the judgment of a criminal proceeding if the defendant was

prejudiced by the deficient performance. In other words, the Court will not set

aside the judgment if the error had no effect on the outcome of the proceeding.10

In order to show prejudice, the defendant must establish “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” 11 A reasonable probability of a different

result requires a “probability sufficient to undermine confidence in the outcome.”12

This standard requires more than a mere showing that the conduct “could have or

might have or it is possible that [it would have]” led to a different result. 13 “The

likelihood of a different result must be substantial, not just conceivable.” 14

       When evaluating an appellate counsel’s conduct for ineffective assistance, a

reviewing court applies the same Strickland test applicable to trial counsel.15

However, the defendant must “show that his counsel was objectively unreasonable

in failing to find arguable issues to appeal – that is, that counsel unreasonably



10
   Id. at 691.
11
   Id. at 694.
12
   Id.
13
   Ploof v. State, 75 A.3d 840, 867 (Del. 2013).
14
   Harrington v. Richter, 131 S. Ct. 770, 792 (2011) (citations omitted).
15
   Neal, 80 A.3d at 946 (citations omitted).
                                             5
failed to discover nonfrivolous issues and to file a merits brief raising them.” 16

The United States Supreme Court has recognized that appellate counsel “need not

(and should not) raise every nonfrivolous claim.” 17 For that reason, it is “possible

to bring a Strickland claim based on counsel’s failure to raise a particular claim,

but it is difficult to demonstrate that counsel was incompetent.” 18 It is “much

easier for a defendant to satisfy the first prong of Strickland where he claims that

his appellate counsel completely failed to file a merits brief.” 19 However, where

counsel did file a merits brief, the defendant faces a “tougher burden of showing

that a particular nonfrivolous issue was ‘clearly stronger than issues that counsel

did present.’” 20

       Defendant raises two claims in this motion for post conviction relief. First,

Defendant’s motion alleges that his appellate counsel was ineffective for failing to

argue on direct appeal that Romeo’s out-of-court statements were inadmissible

under 11 Del. C. § 3507 because they violated the “narrative interpretation” rule.

Similarly, Defendant’s second ineffective assistance of counsel claim alleges that

his trial counsel was ineffective for failing to object to Det. Conner’s testimony

regarding Gibson’s out-of-court statements under the same rules.




16
   Smith v. Robbins, 528 U.S. 259, 285 (2000).
17
   Id. at 288.
18
   Id.
19
   Neal, 80 A.3d at 946.
20
   Id. (quoting Smith, 528 U.S. at 288).
                                           6
       Pursuant to 11 Del. C. § 3507, Delaware law provides that, with a proper

foundation, a witness’ voluntary out-of-court prior statement is admissible even

though the statement would be inadmissible under the Delaware Rules of

Evidence.21 However, the Delaware Supreme Court has emphasized that “[i]t is

the statement of the declarant that is being admitted, not the interpretive narrative

of the person who heard the statement. Care should be taken to guarantee that the

Statute is not abused by permitting a witness, such as a police officer, to embellish

the prior statement by his own interpretation.” 22 To ensure that it is the witness’

statement that is admitted into evidence, the actual words should be documented in

writing or recorded. 23 However, even in the absence of a verbatim written, audio

or video record, the Delaware Supreme Court has held that the admission of a

witness’ statement, as recorded in an agent’s shorthand notes, was not an abuse of

discretion where the agent had written down words used by the witness which

provided the agent with factual information that the agent though was important to

record.24

       As to Defendant’s first claim, his appellate ineffective assistance of counsel

claim asserts that his appellate counsel was ineffective for failing to argue on direct

appeal that the out-of-court statements made by Romeo were inadmissible under

21
   Hassan-El v. State, 911 A.2d 385, 395 (Del. 2006).
22
   Id. at 396.
23
   Morgan v. State, 922 A.2d 395, 399 (Del. 2007) (citing Flonnery v. State, 893 A.2d 507, 524
n.30 (Del. 2006)).
24
   Flonnery, 893 A.2d at 522-24.
                                           7
11 Del. C. § 3507 because the out-of-court statements consisted only of the police

officer’s narrative interpretation of the witness’ statements. 25 Further, Defendant

argues that he was prejudiced by this deficient performance because there is a

reasonable probability that Defendant would have been granted a new trial if the

claim had been successfully pursued.26 The sole issue at trial was the identity of

the shooter. Det. Conner’s testimony that Romeo had identified Defendant as the

shooter was powerful evidence that the jury never should have heard. Defendant

also argues that the jury likely gave greater weight to Det. Conner’s testimony, as

compared to the conflicting identification testimony of lay eye witnesses because

of his status as a police officer, and that Det. Conner’s testimony tipped the

identification evidence in the State’s favor.

       On Defendant’s direct appeal, his appellate counsel raised three claims,

arguing that: (1) there was an insufficient foundation to admit into evidence

Gibson’s out-of-court statement; (2) there was an insufficient foundation to admit

into evidence Romeo’s out-of-court statement; and (3) the trial judge erred in

administering an Allen charge to the jury which, as administered, was coercive. 27

Success on any of these three claims would have resulted in a new trial for

Defendant.



25
   Def. Mot. for Post-Conviction Relief at 2, 6-8.
26
   Id. at 8.
27
   See Collins v. State, 56 A.2d 1012 (Del. 2012).
                                             8
       Despite Defendant’s contention that his interpretive narrative argument is “at

least as strong, if not stronger”28 than the issues actually raised on appeal,

Defendant has not demonstrated that this argument is “clearly stronger” than those

issues.    Defendant asserts that Det. Conner’s testimony as to Romeo’s prior

statement constitutes a narrative interpretation because one page of Det. Conner’s

notes state only that Romeo “ID’d [Defendant]” but did “not say that Romeo

identified [Defendant] as the shooter.” 29 However, Defendant omits Det. Conner’s

other notes, which were part of the contemporaneous record of Romeo’s words

written directly on the line-up next to Defendant’s picture.

       Detective Conner conducted the interview with Romeo and testified on voir

dire that he made handwritten notes during the interview, recording information

and descriptions given by Romeo. 30 At trial, he also identified State’s Exhibit 84

as the photo line-up he has shown to Romeo during the interview.31 Det. Conner

testified that he told Romeo that he was showing her the line-up in connection with

the shooting and asked her “to point out if she recognized anyone in the line-up

and how she recognized them.” 32 As Romeo pointed out three different people in

the line-up that she recognized, Det. Conner recorded the “words she said” directly




28
   Def. Mot. for Post Conviction Relief at 7.
29
   Id.
30
   March 24, 2011 Trial Transcript at 48-50.
31
   Id. at 47.
32
   Id. at 52.
                                                9
onto the line-up, which are “written by the various pictures.” 33 The Court ruled

that Det. Conner could give testimony regarding Romeo’s out-of-court statement to

the extent supported by his notes, ruling that:

       Now on this one I will not allow anything that’s an interpretation.
       However, I think his notes support some specific answers, the notes
       written in dealing with the photo line-up …. But direct questions that
       are supported by his notes, I will allow an answer to. 34

On direct examination, Det. Conner testified that Romeo had identified a photo of

Defendant as the shooter and the person who had been wearing a “brown

hoodie.”35 Det. Conner’s record of Romeo’s identification, written directly on the

line-up next to Defendant’s picture, included the words “Shooter” and “Brown

Hoodie.” 36

       Had Defendant’s argument been raised on appeal, the trial court’s ruling on

the admissibility of a § 3507 statement would have been reviewed by the Delaware

Supreme Court on an abuse of discretion standard, and reversed only if the

Supreme Court found that the trial court’s decision to admit Romeo’s statement

was “clearly erroneous.” 37 At trial, Det. Conner’s testimony regarding Romeo’s

out-of-court statements was specifically limited to answering direct questions

which were supported by his notes made on the photo line-up. The purpose of the

Court’s restriction on Det. Conner’s testimony regarding Romeo’s statements was
33
   Id. at 47, 51-52.
34
   Id. at 56.
35
   Id. at 68.
36
   Exhibit A to State’s Response.
37
   See Flonnery, 893 A.2d at 515.
                                       10
to ensure that Det. Conner could only testify as to the limited recording he made of

Romeo’s statements, 38 and not infuse his interpretation. Based on the Court’s

restriction on Det. Conner’s testimony at trial and the Flonnery Court’s holding on

the admissibility of shorthand notes, Defendant cannot meet the stringent burden of

showing that the admission of Romeo’s identification of Defendant as the

“Shooter” was clearly erroneous.           Nor has Defendant shown that raising that

argument on appeal would be “clearly stronger” than the three claims actually

raised by appellate counsel. For this reason, Defendant has not met the heightened

burden of showing that appellate counsel was unreasonable for failing to include

this issue in the merits brief. Accordingly, Defendant has failed to demonstrate

deficient performance under the first prong of Strickland.

       Moreover, Defendant has failed to demonstrate prejudice under the second

prong of Strickland because he cannot show that had it been raised on appeal, there

is a reasonable probability that Defendant’s narrative interpretation argument

would have prevailed. In his affidavit, appellate counsel admits that in retrospect,

he should have raised Defendant’s current narrative interpretation claim on direct

appeal because there was no reason not to. 39 However, to satisfy the prejudice

prong under Strickland, Defendant must show a “substantial” likelihood of a



38
   The recording is Det. Conner’s written notes on the photo line-up that were made
contemporaneously with Romeo’s statements.
39
   Appellate Counsel’s Affidavit.
                                           11
different result, not merely a “conceivable” one. 40 Defendant cannot demonstrate a

substantial likelihood that the Delaware Supreme Court would have found that the

admission of Romeo’s statement was clearly erroneous under § 3507 because

Romeo’s identification of Defendant as the shooter is expressly recorded in Det.

Conner’s line-up notes. Accordingly, Defendant failed to satisfy either prong of

the Strickland test for his ineffective assistance of counsel claim against his

appellate counsel.

            As to Defendant’s second claim, his trial ineffective assistance of counsel

claim asserts that his trial counsel’s failure to object to Det. Conner’s testimony

regarding Gibson’s prior statement was ineffective because Det. Conner’s

identification testimony was inadmissible under 11 Del. C. § 3507 because the out-

of-court identification made by Gibson contradicted Det. Conner’s narrative

interpretation of her out-of-court statement.41        Defendant asserts that he was

prejudiced by this deficient performance for the same reasons set forth in his claim

against appellate counsel. Det. Conner’s testimony that Gibson had identified

Defendant as either the shooter or with the shooter was powerful evidence that the

jury never should have heard, and the jury likely gave more weight to Det.

Conner’s testimony because of his status as a police officer. 42



40
     Harrington, 131 S. Ct. at 792.
41
     Def. Mot. for Post-Conviction Relief at 3-4.
42
     Id. at 8.

                                              12
       Defendant’s claim against his trial counsel is based solely on the argument

that Det. Conner’s recitation of Gibson’s statement constituted an “interpretive

narrative” because Gibson, after indentifying Defendant as “either the shooter or

the guy with the shooter,” arguably contradicted herself by adding, “but he didn’t

have nothing to do with it.” 43 However, Defendant’s argument fails because the

mere presence of contradiction or ambiguity within Gibson’s recorded statement

does not transform Det. Conner’s recitation of a portion of that statement into an

interpretive narrative. Further, in his affidavit, trial counsel observed that “it is not

clear to [me] how Detective Conner is expressing his narrative opinion of what he

has been told, in that his testimony mirrors that statement provided by Ms.

Gibson.”44 Rather than contest Gibson’s statement on these grounds, Defendant’s

trial counsel adopted the strategy of attacking the credibility of Gibson’s

identification of Defendant.45 Defendant has failed to meet his burden under

Strickland of proving either ineffective assistance or prejudice therefrom because

Det. Conner’s recitation of Gibson’s out-of-court statement did not constitute an

interpretive narrative, and Defendant has offered no evidence to rebut the

presumption that trial counsel’s trial strategy was reasonable.




43
   Id. at 4.
44
   Trial Counsel’s Affidavit at 2.
45
   Id. at 2-3.
                                       13
                                Conclusion


    For the foregoing reasons, Defendant’s Motion for Post-conviction Relief is

DENIED.


IT IS SO ORDERED.


                                         ______________________
                                         Judge Calvin L. Scott, Jr.




                                  14
