    IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                           )
STATE OF DELAWARE                          )
                                           )
       v.                                  )      I.D. No. 0907019543A
                                           )
LEONARD M. TAYLOR,                         )
                                           )
                     Defendant.            )
                                           )


                            Submitted: March 20, 2016
                             Decided: April 26, 2016

        On Defendant Leonard Taylor’s Second Amended Motion for
                         Postconviction Relief.
                               DENIED.

                                     ORDER
Elizabeth R. McFarlan, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.

Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware,
Attorney for Defendant.

COOCH, R.J.

       This 26th day of April, 2016, upon consideration of Defendant’s
Second Amended Motion for Postconviction Relief, it appears to the Court
that1:

              1.      On May 4, 2009, a body was found in a wooded
                     area in Carney[s] Point, New Jersey, shot three
                     times in the head. The victim had trash bags over
                     his head and legs and did not have any

1
 Unless otherwise indicated, all of the facts in this case are quoted verbatim from
Defendant’s direct appeal to the Delaware Supreme Court. Taylor v. State, 44 A.3d 923,
2012 WL 1377589, at* 1–4 (Del. Apr. 17, 2012) (TABLE) (internal citations omitted).
     identification on his person when he was
     discovered. The victim was later identified by
     fingerprints as Sven Hinds (“Hinds”).

2.   In late January 2009, Hinds along with two
     associates, Dharrion Newton (“Newton”) and
     [Ricardo] Rimpal [(“Rimpal”)], migrated from the
     State of New York to the Delaware area to pursue a
     clothing line and t-shirt business. The t-shirt
     business was primarily a front for the real purpose
     of illegal narcotic sales. The fourth member of this
     drug sales operation was Taylor, who provided
     clientele for the drug operation as well as access to
     heroin, while Hinds had several contacts for
     cocaine. The “business” was conducted in both the
     State of Delaware and the State of Maryland.

3.   The four business associates spent a great deal of
     time in different hotels in the Newark area, from
     which they were able to both create and sell t-shirts
     along with engage in the sale of narcotics. The
     police were able to determine that Taylor had rented
     several vehicles from American Auto Rental, which
     was located in Edgewood, Maryland. Specifically,
     from April 7, 2009[,] through May 5,
     2009, Taylor had rented a 2006 Toyota Avalon. The
     rented Avalon was equipped with a GPS unit which
     had a daily self-check device that allowed the
     business owner of the vehicle to be able to locate
     the vehicle on a daily basis. On May 2, 2009[,] and
     May 3, 2009, the 2006 Avalon was located at a
     shopping center in Newark, Delaware. Located next
     to that shopping center was a Super Eight Motel at
     268 East Main Street, Newark, Delaware.

4.   Business records from the Super Eight Motel
     revealed that Taylor had rented two rooms at the
     motel from April 17, 2009[,] through May 6, 2009,
     specifically rooms 219 and 115. The Newark Police
     Department executed a search warrant on Room
     219, where several blood stains were found on the
     carpet and the carpet padding in the center of the
     room. A DNA analysis was completed on the blood
     sample contained in the carpet from Room 219, and
     was matched to Hinds, the victim.




                           2
5.   Throughout the investigation, which included
     several police agencies in three different states,
     there was no physical evidence to identify who
     murdered Hinds. The murder weapon was never
     located, there was no DNA evidence that identified
     the perpetrator or perpetrators, and there was no
     identifying fingerprint evidence to link to the
     individual or individuals who murdered Hinds.

6.   Believing that the murder was not random or
     committed in the course of a robbery, the police
     theorized that the murder was committed by
     someone who knew and associated with Hinds and
     had a motive to commit the murder. The police
     were ready to focus their investigation on
     identifying a person who met those criteria.

7.   As a result, the investigation focused on
     interviewing Hinds' business associates as well as
     other people who spent time with Hinds' business
     associates. Newton and Rimpal were both
     interviewed several times and each gave several
     contradictory versions to the police as to what
     occurred on the evening of May 2, 2009, and who
     was involved. Newton and Rimpal both lied to the
     police numerous times in their statements to law
     enforcement and routinely explained that the basis
     for their lies was fear of retaliation from Taylor and
     or Hinds and their associates and families.
     However, the one feature common to all of their
     respective statements prior to trial was
     that Taylor was the person in Room 219 on May 2,
     2009, and that when they (Rimpal and Newton)
     arrived in the room that evening, Hinds was lying
     dead on the floor.

8.   The trial began on January 10, 2011. One of the
     State's key witnesses was Rimpal, who testified that
     on the night of the murder, he received a phone call
     from Taylor asking for Rimpal to purchase a few
     items from Wal–Mart. Those items included latex
     gloves, peroxide, and a container/storage bin, and
     were all commonly used as part of the t-shirt
     business. Rimpal was with Sheena Testerman
     (“Testerman”) at the time of the phone call and trip
     to Wal–Mart. She testified consistently with Rimpal
     regarding the products purchased at Wal–Mart.

                           3
      Rimpal testified that he drove from the Wal–Mart to
      the Super Eight motel with Testerman. As they
      exited the vehicle, Testerman went to the first floor
      motel room and Rimpal proceeded upstairs. Rimpal
      testified as he entered the upstairs motel room,
      Newton and Taylor were in the room and he did not
      see Hinds. However, as he entered the room he saw
      Hinds' feet between the two beds on the floor.
      Rimpal testified that he saw a small pistol tucked
      in Taylor's waistband and then later saw Hinds with
      a gunshot in his temple.

9.    During his testimony, Rimpal acknowledged that in
      prior interviews with law enforcement he was not
      truthful and also minimized his involvement in the
      murder of Hinds. He explained the basis for his
      actions was that he was afraid of the repercussions
      from back where he lived. Rimpal further testified
      before the jury, over objection by Taylor's trial
      counsel, that the basis for his fear was that he had
      been assaulted on a couple of occasions,
      insinuating Taylor had something to do with these
      assaults. Trial counsel for Taylor objected at sidebar
      and asked for a mistrial due to the clear implication,
      made by Rimpal, that Rimpal was assaulted three
      times and Taylor had something to do with it. The
      trial judge denied the motion for mistrial and
      instead gave the jury a curative instruction.

10.   Rimpal also provided the State with information
      regarding motive. Rimpal testified that Taylor and
      Hinds dealt with each other and often engaged in
      mutual childish “hazing.” Rimpal also testified that
      Hinds ordered him to do nasty things
      to Taylor's mother. In furtherance of Rimpal's desire
      to create a motive for the State, he testified how he
      informed Taylor of Hind's instructions regarding
      threatening Taylor's mother                       and
      destroying Taylor's father's property. Rimpal also
      told the jury that Taylor was aware that Hinds did
      not like him and Taylor was putting up a front and
      dealing with it. Rimpal was not arrested or charged
      for anything in connection with the murder of
      Hinds.

11.   Newton testified for the State regarding his
      recollection of what occurred the evening of Hinds'

                            4
      murder. Newton testified, consistent with Rimpal,
      that they both entered the room separately,
      that Taylor was in the motel room with a pistol, and
      Hinds was on the floor. Newton also testified that
      he and Rimpal, along with Taylor, all cleaned up
      the room where Hinds was murdered, and that they
      all placed trash bags on Hinds body and transported
      the body to New Jersey where it was dumped in a
      wooded area.

12.   Newton acknowledged that throughout his time in
      Delaware and Maryland he smoked a great deal of
      marijuana. Newton also testified that in prior
      interviews with law enforcement he was not truthful
      and also minimized his involvement in the murder
      of Hinds. The basis for his actions, he explained,
      was that he was afraid of the repercussions from
      back where he lived, because there was a motto,
      “snitches get stitches.” For that reason, he was
      worried for the sake of himself and his family. As a
      result of the numerous lies and false statements to
      the police, Newton was charged with hindering
      prosecution in February 2010. Newton pled guilty
      to that felony[-]level offense. His sentencing was
      scheduled for the month after Taylor's trial, in
      February 2011.

13.   Eric Briggs was a prison snitch who testified to
      statements made by Taylor while both were
      incarcerated in Harford County, Maryland. On
      January        19,      2011,     before   Briggs
      testified, Taylor's counsel filed a Motion to
      Exclude Taylor's statements to Briggs. After
      hearing oral arguments on the [M]otion prior to
      Briggs'       testimony,      the    trial  judge
      denied Taylor's Motion to Exclude.

14.   Briggs testified that Taylor told him that Taylor shot
      the victim three times in the head and then drove the
      body and dumped it in the woods in New Jersey.
      Briggs also claimed that Taylor told him that the
      victim was planning on taking over his drug
      business       and      had      threatened      harm
      to Taylor's mother. Briggs corroborated several
      facts concerning Taylor's drug operation, which
      Newton and Rimpal previously testified to. In his
      testimony, Briggs confirmed that in his July 20,

                            5
                       2009 interview he was told by law enforcement to
                       find out more detailed incriminating statements
                       from Taylor. Briggs also testified that the purpose
                       of     gaining     more       detailed    statements
                       from Taylor was to then report back to the police
                       with the hope of receiving a “break.”

       15.     Defendant was convicted of non-capital Murder First Degree
               and Possession of a Firearm During the Commission of a
               Felony. Defendant filed a pro se “Motion of Acquittal” on
               February 8, 2011.2 Defendant’s trial counsel moved to
               withdraw the following week.3 Trial counsel’s Motion to
               Withdraw was granted on March 30, 2011, and the Court
               appointed conflict counsel to represent Defendant in his appeal
               to the Supreme Court.4 On June 2, 2011, Defendant was
               sentenced to life imprisonment, plus five years for Possession
               of a Firearm During the Commission of a Felony.5 A timely
               notice of appeal was filed with the Delaware Supreme Court.6
               Defendant’s conviction and sentence were affirmed on April
               17, 2012.7

       16.     On April 29, 2013, Defendant filed a pro se Motion for
               Postconviction Relief.8 This Court appointed counsel to
               represent Defendant. Appointed counsel then filed an
               Amended Motion for Postconviction Relief, asserting
               ineffective assistance of both trial and appellate counsel. In
               October 2014 both trial and appellate counsel submitted
               separate affidavits in response to the claims of ineffective
               assistance of counsel. Defendant then filed a Second Amended
               Motion for Postconviction Relief, reflecting newly-provided
               record evidence of a PowerPoint slide that had been used by the

2
  A7.
3
  Id.
4
  Id.
5
  A53–56.
6
  A8.
7
  Taylor v. State, 44 A.3d 923, 2012 WL 1377589, at* 1 (Del. Apr. 17, 2012) (holding the
Superior Court acted within its discretion in giving a curative jury instruction rather than
granting a mistrial for a witness’s statement that he had been assaulted by Defendant and
the State’s use of a cellmate to gather information about the murder did not violate the
due process clause of the Delaware Constitution).
8
  A10.
                                             6
              State in its summation, the State filed a Response. Defendant
              elected not to file a reply to the State’s Response.

       17.    Defendant’s Amended Motion is controlled by Superior Court
              Criminal Rule 61.9 Before addressing the merits of this
              Amended Motion, the Court must address the procedural
              requirements.10

       18.    A motion for postconviction relief can be procedurally barred
              for time limitations, successive motions, procedural defaults,
              and former adjudications.11 If a procedural bar exists, the Court
              will not consider the merits of the postconviction claim unless
              the Defendant can show that, pursuant to Rule 61(d)(2), the
              procedural bars are inapplicable.

       19.    None of these procedural bars apply to Defendant’s Second
              Amended Motion. Although a claim for relief that is not
              asserted in the proceedings leading up to judgment of
              conviction is procedurally barred, Defendant alleges ineffective
              assistance of both his trial and appellate counsel, which he
              could not have brought until now.


       20.    Defendant’s claim of ineffective assistance of counsel is
              reviewed under the United States Supreme Court decision in
              Strickland v. Washington.12 To determine whether a defendant
              was denied his Sixth Amendment right to effective assistance of
              counsel, Strickland established a two-prong test.13 First, a
              defendant must show that counsel’s performance was deficient
              because the representation fell below an objective standard of
              reasonableness. 14 Second, the defendant must then show he


9
  Super. Ct. Crim. R. 61. Since Defendant filed his Motion for Postconviction Relief on
April 29, 2013, Defendant’s Motion is governed by the version of Rule 61 that became
effective on July 1, 2005, and not the current version of the Rule.
10
   Younger v. State, 580 A.2d 552, 554 (Del. 1990).
11
   Super. Ct. Crim. R. 61(i)(1)-(4).
12
   466 U.S. 668 (1984).
13
   Ploof, 75 A.3d at 820 (“While the Sixth Amendment is not directly applicable to the
State of Delaware, the United States Supreme Court has applied the Sixth Amendment to
the states through the Fourteenth Amendment.”).
14
   Strickland, 466 U.S. at 687-88.
                                           7
              was prejudiced by the deficient performance.15 “This requires
              showing that counsel's errors were so serious as to deprive the
              defendant of a fair trial, a trial whose result is reliable.”16

       21.    When evaluating whether counsel’s representation fell below an
              objective standard of reasonableness, a court must “eliminate
              the ‘distorting effects of hindsight’ and ‘indulge a strong
              presumption that counsel's conduct falls within the wide range
              of reasonable professional assistance.’”17 Also, to establish
              prejudice a defendant must show “a reasonable probability
              that[] but for counsel’s unprofessional errors, the result of the
              proceeding would have been different.”18 “A reasonable
              probability is a probability sufficient to undermine confidence
              in the outcome,” which is a lower standard than “more likely
              than not.”19 Finally, when reviewing trial counsel’s
              performance under Strickland, there is “a strong presumption
              that the representation was professionally reasonable.”20

       22.    Defendant raises four claims for relief in his Second Amended
              Motion. His first assertion is that trial counsel was ineffective
              because he allegedly failed to advise the State that Defendant
              was willing to plead “no contest” to the charge of manslaughter.
              Defendant acknowledges that the State offered him a plea
              agreement to the charge of manslaughter, but with that offer he
              would have had to plead “guilty.”21 Defendant claims that he
              asked his trial counsel if he could plead “no contest,” and trial
              counsel told him that was not possible without consulting the
              State.22 Defendant claims that “[t]rial counsel did not even
              know [Defendant’s] plea options, because he never discussed
              [Defendant’s] no contest plea proposal with the State.”23
              Finally, Defendant claims that this deficient performance by
              trial counsel prejudiced him, because if he was able to secure a

15
   Id. at 687.
16
   Id.
17
   Ploof, 75 A.3d at 821 (quoting Strickland, 466 U.S. at 689).
18
   Strickland, 466 U.S. at 694.
19
   Id. at 693-94.
20
   Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
21
   Second Amended Mot. for Postconviction Relief at 27 (Jan. 30, 2016).
22
   Id.
23
   Id. at 28.
                                           8
               no contest plea to manslaughter, “his sentence would have been
               vastly less, even at its maximum, than the one he is currently
               serving.”24

       23.     However, in the affidavit of trial counsel Eugene J. Maurer,
               Esquire it seems clear that Defendant was made aware of his
               plea options and neither suffered ineffective assistance of
               counsel nor any prejudice at the hands of his counsel. In trial
               counsel’s affidavit he states, “[Defendant] was brought to the
               courthouse in Dover on November 17, 2010[,] for the sole
               purpose of what counsel believed was going to be an
               acceptance of the plea that had been extended by the State.”25
               After Defendant ultimately rejected the proposed plea offer,
               trial counsel sent a letter to Defendant the following day
               memorializing the previous day’s events. Trial counsel therein
               stated:

                              Through my efforts I was able to persuade
                      the prosecution to extend a [p]lea [o]ffer to you
                      which would have resulted in your being
                      incarcerated for a period of five years in connection
                      with a plea to Manslaughter. As part of the plea,
                      the State would drop [the] charges of Murder in the
                      First and Second Degrees and Possession of a
                      Firearm During the Commission of a Felony. The
                      State would have recommended 25 years in jail,
                      suspended after five years for six months Home
                      Confinement followed by 18 months at Level III
                      Probation. You initially indicated to me that you
                      were unwilling to accept the plea due to the fact that
                      you were not given any guarantees or assurances
                      that the bargained-for sentence would be that which
                      would be imposed. You did, however, indicate
                      quite clearly to me that if I could provide you with
                      those assurances, you would in fact accept the
                      State’s [p]lea [o]ffer.

                              Acting upon that, I went back to the
                      Prosecutor’s Office and spoke with them and,
                      specifically, was able to have them agree to an
                      immediate sentencing which, for the most part,

24
  Id. at 29.
25
  Trial Counsel’s Aff. In Connection with Pet’r’s Mot. for Postconviction Relief at ¶ 6.
D.I. 87.
                                            9
would have precluded any additional sentence
above and beyond that which was negotiated. Even
more so, I met with the Judge on November 17 in
the presence of the Prosecutors and went over the
terms of the [p]lea [a]greement with him. He
indicated that, as long as the State was in agreement
with the recommendation, which they were, he
would follow the negotiated plea resolution. I also
indicated to you that I’ve been practicing in front of
this Judge and in Dover for quite some period of
time, and I have never seen the Judge or the Court
disregard a [p]lea [a]greement of this nature.

        I, therefore, came back to you after the
[Truth in Sentencing] documents were signed and
indicated the above to you and told you that the
five-year sentence was a guarantee. For reasons
which are bewildering to me, you then indicated
that you did not “trust the system” and, in
particular, you were concerned by the fact that the
parents of the victim were present and wanted to
speak in memory of their son, who was assassinated
by three bullets in his head, and I further indicated
to you that their presence would not make a
difference in the terms of the sentence that was
[going to be] imposed. In short, I told you without
hesitation that the five-year prison sentence was a
“done deal” and that the Judge would impose it. Of
course, you would have been given credit for time
served and also you would be able to obtain “good
time” during the period of time when you were
incarcerated. We figured that you would be out of
prison in approximately two and one-half years. I
must say that this is probably the best plea that I
have ever been able to negotiate for an individual
charged with Murder in the First Degree.
Notwithstanding the above, as is our right, you
rejected the plea and now wish to go to trial. . . .

        Please understand something[:] You are
never required to accept any type of [p]lea [o]ffer
and you certainly have the right to go to trial no
matter how good the offer is. What bothers me is
that fact that you allowed me to go forward and do
all of these things on your behalf when it now
appears that you never had any intention of
accepting such a plea in the first place. If you had
simply told me flat out that you did not wish to do

                     10
                      that, then I would not have gone to all the trouble
                      that I did to try to make the five-year plea a reality
                      for you. In that sense, and for reasons which are not
                      at all clear to me, it appears that you were
                      manipulating me toward your own ends and for
                      reasons which, again, are entirely unclear to me. . . .

                              I simply wanted to put all of these things
                      “on the record,” if you will, so, if things don’t go
                      well for you at trial, I am quite sure that I will be the
                      first one at whom you point a finger for not having
                      represented your interests adequately. I wanted to
                      make clear that you were provided with every
                      opportunity to accept the plea which would have
                      eliminated the potential of a mandatory life
                      sentence and that you knowingly and intelligently
                      rejected that [p]lea [o]ffer.26


       24.     Given the letter trial counsel sent to Defendant the day after he
               rejected any plea offer from the State, it does not appear that
               trial counsel acted ineffectively, nor does it appear that
               Defendant suffered any prejudice due to trial counsel’s actions.
               Contrary to Defendant’s assertion that if he had been offered a
               “no contest” plea that “there is no reason to believe that he
               would not have accepted the offer,” it appears that he likely still
               would have rejected it. Defendant was originally charged with
               Murder First Degree, which would require him to serve a
               mandatory life sentence. When offered the option to plead
               guilty to manslaughter and have the State cap its
               recommendation at five years Level V, he first agreed to accept
               the offer. Then, for reasons that were “bewildering” to trial
               counsel, Defendant then changed his mind and refused to accept
               the State’s favorable offer.

       25.     Since Defendant originally went to the courthouse to accept a
               plea agreement from the State; signed the Truth-in-Sentencing
               Guilty Plea form; and allowed his trial counsel to extensively
               negotiation such a favorable plea agreement, his assertion that
               he likely would have plead no contest to the charges but would
               not have plead guilty is hardly credible. Therefore, Defendant’s

26
  Letter attached to Trial Counsel’s Aff. In Connection with Pet’r’s Mot. for
Postconviction Relief D.I. 87.
                                             11
              assertion that his counsel was ineffective for failing to
              communicate with the State about his willingness to plead no
              contest does not meet the first prong under Strickland.

       26.    Next, Defendant argues that the State’s case against him was
              based primarily “around the testimony of several
              accomplices.”27 Therefore, Defendant contends that trial
              counsel was ineffective for failing to request an accomplice
              testimony instruction and appellate counsel Brian J. Chapman,
              Esquire was ineffective for failing to raise that failure on
              appeal. In 2010 the Delaware Supreme Court ruled that trial
              counsel was ineffective in Smith v. State because trial counsel
              failed to request an accomplice testimony instruction.28 The
              Court reasoned that trial counsel should have requested an
              accomplice testimony instruction because the normal pattern
              instruction on witness credibility and arguments to the jury
              about an accomplice’s credibility were not enough to guard
              against the accomplice’s possible ulterior motivation for
              testifying.29

       27.    Defendant states that three of the witnesses who testified
              against him at trial testified to being both accomplices in drug
              dealing and accomplices to the murder of Hinds. Defendant
              contends that this testimony was “central” to the State’s case
              against him and provided details in the case that were not
              corroborated by other evidence. Defendant states that “[m]ost
              of the other evidence corroborating the story that [Defendant]
              killed Hinds came from a prison snitch and a woman who first
              claimed to merely have ‘assumed’ [Defendant] was the
              murderer.”30

       28.    Defendant places great emphasis on the 2010 Delaware
              Supreme Court decision in Smith v. State.31 Although the
              Delaware Supreme Court has since overruled the holding in
              Smith, this Court must apply the case law that was controlling


27
   Second Amended Mot. for Postconviction Relief at 31 (Jan. 30, 2016).
28
   991 A.2d 1169, 1175 (2010).
29
   Id. at 1177–78.
30
   Second Amended Mot. for Postconviction Relief at 36 (Jan. 30, 2016).
31
   991 A.2d 1169 (Del. 2010) overruled by Brooks v. State, 40 A.3d 346 (Del. 2010).
                                          12
               at the time of the trial.32 Defendant asserts that since the
               testimony was uncorroborated by other evidence and it was
               central to the State’s case, trial counsel’s failure to request
               accomplice testimony instruction constituted ineffective
               assistance of counsel. Furthermore, Defendant contends that
               his appellate counsel was ineffective for failing to raise this
               issue on appeal.

       29.     Trial counsel stated in his affidavit that “[i]t was not the
               defense’s strategy to even suggest to the jury that Newton,
               Rimpal, and Testerman were accomplices to the homicide with
               which [Defendant] was charged.”33 Instead, it was “defense’s
               position that [Defendant] was not involved in the acts giving
               rise to the homicide and was not guilty of the offenses.”34
               During a prayer conference where the issue was raised, trial
               counsel advocated against any such instruction because it did
               not comport with his trial strategy. Trial counsel stated:

                              Your Honor, I think, without citing the case
                      law, obviously the Court is very familiar with it,
                      that there has to be some evidence in the record to
                      support the giving of the instruction. I think the
                      State’s theory of the case as presented to the jury is
                      that [] Taylor committed this homicide and
                      committed it alone and that Mr. Newton and Mr.
                      Rimp[al] helped him after the fact.

                              My argument would never be that [] Taylor
                      was an accomplice to either Mr. Rimp[al] or Mr.
                      Newton. I think I am free, based on the record, to
                      argue that that Mr. Newton or Mr. Rimp[al] could
                      have committed this homicide either themselves or
                      together while maintaining that [] Taylor did not.
                      So I don’t believe that, under the case law, there’s
                      sufficient evidence in the record to support the




32
   Hoskins v. State, 102 A.3d 724, 732 (Del. 2014) (“Thus, for cases decided before
Brooks, our analysis on postconviction review of a Bland claim is governed by the case
law controlling at the time of the trial.”).
33
   Trial Counsel’s Aff. In Connection with Pet’r’s Mot. for Postconviction Relief at ¶ 8.
D.I. 87.
34
   Id.
                                            13
                      giving of an accomplice liability instruction. And I
                      would object to such an instruction.35

       30.     The Court agreed with trial counsel’s argument and found no
               rational basis in the evidence to support an accomplice
               testimony instruction. Since it was the defense strategy to
               separate Defendant from the witnesses and suggest that one or
               both of them actually killed Hinds, it does not make sense to
               then expect trial counsel to implicate Defendant as an
               accomplice to the murder with an accomplice jury instruction.

       31.     Furthermore, Defendant has failed to demonstrate that he
               suffered any prejudice. By arguing against an accomplice
               instruction, counsel was free to argue that the witnesses
               conspired against him, not with him, to commit the murder.
               Similarly, since trial counsel was not ineffective for not
               requesting an accomplice instruction, appellate counsel was not
               ineffective for not raising this claim on appeal.

       32.     The third claim raised by Defendant is that trial counsel was
               ineffective for failing to object to a PowerPoint slide donning
               his face and the word “Guilty” in bold, red letters. The slide
               also had the names of all of the witnesses and the word
               “Evidence” pointing at the photo of Defendant with red
               arrows.36 Defendant contends that “[t]here is no reason to
               combine a visual of [him] with the word ‘Guilty’ embossed
               overtop in a PowerPoint slide except to stimulate emotion and
               prejudice.”37 Therefore, Defendant argues that his trial counsel
               was ineffective for failing to object to the slide and his appellate
               counsel was ineffective for failing to raise the claim on appeal.

       33.     A recent Delaware Supreme Court opinion discussed a similar
               situation and provided some guidance to the Bar on


35
   Tr. of prayer conference attached to Trial Counsel’s Aff. In Connection with Pet’r’s
Mot. for Postconviction Relief. D.I. 87.
36
   Defendant also states that the State used another slide that depicted Hinds’ body with
the word “Guilty” written over it during closings arguments. However, Defendant’s
counsel has been unable to find any record of this PowerPoint slide. Therefore, this
Court will only consider the PowerPoint slide of which there is a record.
37
   Second Amended Mot. for Postconviction Relief at 42 (Jan. 30, 2016).
                                            14
               “PowerPoint presentations and their acceptable boundaries in
               criminal prosecutions.”38 The Delaware Supreme Court stated:

                      As a general matter, PowerPoint presentations are
                      not inherently good or bad. Rather, their content and
                      application determines their propriety. This Court
                      does not seek to discourage the use of technology in
                      closing arguments to summarize and highlight
                      relevant evidence for the benefit of the jury. But
                      slides may not be used to put forward impermissible
                      evidence or make improper arguments before the
                      jury. A PowerPoint may not be used to make an
                      argument visually that could not be made orally.
                      While prosecutors are given latitude in making
                      closing arguments, his or her comments must be
                      limited to properly admitted evidence and any
                      reasonable inferences or conclusions that can be
                      drawn therefrom. The prosecutor may neither
                      misstate the law nor express his or her personal
                      opinion on the merits of the case or the credibility
                      of witnesses. A defendant should timely object to
                      improper comments or slideshow presentations, so
                      that the trial court is offered an opportunity to
                      address any objections.39

       34.     Trial counsel acknowledges that the best practice would have
               likely been to object to the use of the PowerPoint slide, as
               counsel was also the trial counsel in Spence v. State.40
               However, trial counsel states that his decision not to object
               “may” have been strategic.41 Appellate counsel also stated in
               his affidavit that he was not ineffective in his representation on




38
   Spence v. State, 129 A.3d 212, 220 (Del. 2015).
39
   Id. at 223 (internal citations omitted).
40
   Trial Counsel’s Aff. In Connection with Pet’r’s Mot. for Postconviction Relief at ¶ 12.
D.I. 87.
41
   Id. (“Counsel would note as an aside that he had objected once during [the State’s]
opening summation and twice during [the State’s] rebuttal summation. Counsel has
always felt that repetitive objections during summations could redound to the defendant’s
detriment and that may be the reason why no additional objection was made to the
[P]ower[P]oint. The State’s position that the defendant was guilty was fairly obvious.
However, if given the opportunity again, counsel would have objected to this
presentation.”).
                                           15
               appeal because after a review of the transcripts and trial
               material, he raised the issues he felt had merit on appeal.42

       35.     The Court does not find that this slide was impermissible;
               therefore, trial counsel was not ineffective for failing to object
               and appellate counsel was not ineffective for failing to bring the
               issue on appeal. When evaluating individual PowerPoint slides
               to determine whether they are permissible, it is important to
               recognize what the Supreme Court stated in Spence:
                      It would be, no doubt, perilous for this Court to
                      attempt to derive specific rules regarding visual
                      aids. For example, use of the color red is not always
                      prejudicial. Use of capitalized letters does not
                      necessarily constitute “shouting.” The word
                      “guilty,” when presented as a written word in a
                      visual aid, does not always constitute an improper
                      expression of a prosecutor's opinion of guilt.43

               The PowerPoint slide that was used in Defendant’s trial is
               factually distinguishable from the impermissible slide used in
               Spence. The slide used by the State in Spence displayed an
               image of the victim’s bloody body.44 The slide also featured
               the words “Terror,” “Fear,” and “Murder.”45 By contrast, the
               slide used by the State in Defendant’s trial displayed the word
               “Guilty” over an image of him. There is no blood and
               Defendant does not appear to be injured or unpresentable. It
               also contained the names of the witnesses and the word
               “Evidence” around Defendant’s photograph, with arrows
               pointing towards Defendant. The implication seems to be that
               all of the witness’ testimony and evidence lead to Defendant.

       36.     Unlike the impermissible slide in Spence, this slide was not
               meant to inflame the jury’s emotions. Instead, the State was
               using the slide to visually illustrate what it was otherwise
               stating during its closing arguments: that Defendant was guilty
               of murdering Sven Hinds. In fact, Defendant’s trial counsel has

42
   Appellate Counsel’s Aff. In Resp. to Am. Mot. for Postconviction Relief at 3 (Oct. 27,
2014). D.I. 86.
43
   Spence v. State, 129 A.3d at 223 n. 40.
44
   Id. at 223.
45
   Id.
                                           16
               conceded in his affidavit and letter attached to the affidavit that
               it was “fairly obvious” that Defendant was guilty of the crime.46
               The letter that was attached to the affidavit was sent to
               Defendant on November 18, 2010, approximately three weeks
               before Defendant’s trial.

       37.     The State’s closing argument lasted approximately 90 minutes.
               During that time, the State discussed all of the evidence it
               presented during the case, including witness testimony. At the
               end of the State’s closing, it declared, “Leonard Taylor is guilty
               of the murder of Sven Hinds. And when you look at the
               evidence, the State is confident that you will return a verdict of
               guilty against Leonard Taylor for the murder of Sven Hinds.”47
               The slide that the State used visually depicted the conclusion
               the State was attempting to convey. The slide listed the
               witnesses that testified against Defendant and had red arrows
               that pointed towards a photograph of him indicating that he was
               guilty. There were no misstatements of law, no personal
               opinions given about witness credibility, and no impermissible
               evidence offered. Therefore, the slide was not impermissible
               and neither trial nor appellate counsel was ineffective for failing
               to challenge it.

       38.     Furthermore, even if the slide was improper, which the Court
               holds that it was not, trial counsel was not ineffective for failing
               to object under the Hughes test.48 The three-prong analysis
               under Hughes considers: (1) the closeness of the case; (2) the
               centrality of the issue affected by the error; and (3) the steps
               taken to mitigate the effects of the error.49


46
   See Trial Counsel’s Aff. In Connection with Pet’r’s Mot. for Postconviction Relief at ¶
12 (“The State’s position that the defendant was guilty was fairly obvious.”); Letter
attached to Trial Counsel’s Aff. In Connection with Pet’r’s Mot. for Postconviction
Relief (“[Y]ou seem[] to feel that your chances of winning this case at trial are better than
I perceive[] them to be. . . . [T]here was a good chance that you could be convicted of
Murder in the First Degree.”).
47
   A329.
48
   Hughes v. State, 437 A.2d 559, 572 (Del. 1981) (quoting Dyson v. U.S., 418 A.2d 127,
132 (D.C. 1980). See also Spence, 129 A.2d at 219 (“To determine whether the
misconduct prejudicially affected the defendant, we apply the three factors identified
in Hughes v. State.”).
49
   Hughes, 437 at 572.
                                             17
         39.   The first prong is easily met. Trial counsel advised Defendant
               several times that in trial counsel’s opinion this was not a close
               case and it was “fairly obvious” Defendant was guilty of the
               crime. From the Court’s review of the evidence, it also
               concludes that the State had a strong case. Second, this slide
               was not at the center of the State’s case. The State presented
               five witnesses who testified against Defendant. The State then
               gave a closing statement that lasted 90 minutes. At the very
               end of the closing argument, the State displayed this slide. All
               that Defendant claims the State said was “Leonard Taylor is
               guilty of the murder of Sven Hinds. And when you look at the
               evidence, the State is confident that you will return a verdict of
               guilty against Leonard Taylor for the murder of Sven Hinds.”50
               Therefore, the slide was not the centerpiece of the State’s case,
               it was a visual summation of the evidence against Defendant.
               Finally, there does not appear to be any steps taken to mitigate
               the effects of the alleged error; however, given the strength of
               the first two factors, trial counsel’s failure to object to the slide
               and appellate counsel’s failure to raise the issue on appeal was
               harmless error, if error at all.

         40.   Last, Defendant claims that he is entitled to relief because of the
               cumulative prejudicial effect of the errors that he asserts in his
               Second Amended Motion. However, since Defendant has
               failed to demonstrate any prejudice from the alleged errors,
               there can be no cumulative effect.

      Therefore, Defendant’s Second Amended Motion for Postconviction
Relief is DENIED.

         IT IS SO ORDERED.

                                                       ______________________
                                                         Richard R. Cooch, R.J.

oc:      Prothonotary
cc:      Investigative Services



50
     A329.
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