IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
)
v. )
)
BRANDON WYCHE, ) Cr. A. No. 1208026082A
)
Defendant. )
)
)

Date Decided: March 5, 2018
On Defendant Brandon Wyche’s Motion for
Postconviction Relief. DENIED.
was
On March lZ, 2011 Defendant was shot in the head during a robbery by BJ
Merrell. After Defendant recovered from his injuries, he went to a park where
Merrell and his friends were playing dice and basketball on August 30, 2012.
Defendant began a fight with Merrell and Defendant subsequently pulled out a gun
and shot Merrell. Merrell’s girlfriend witnessed the event and told police.
Defendant was arrested and indicted on charges of Murder (First Degree),
Possession of a Firearm During the Cornrnission of a Felony, and Possession of a
Firearm by a Person Prohibited. The State made two plea offers which the Defendant

rejected both. A jury found Defendant guilty of Murder (First Degree) and

Possession of a Firearm During the Commission of a Felony. Defendant was
sentenced to life in prison on the murder charge and 25 years at Level V for
Possession of a Firearm During the Commission of a Felony. The Delaware
Supreme Court affirmed Defendant’s convictions on April 15, 2015.

Defendant filed his initial Motion for Postconviction Relief on July 28, 2015
and Defendant was appointed counsel on July 1, 2016. Subsequently on March 10,
2017, Defendant’s counsel filed a Motion to Withdraw as counsel. Counsel provided
Defendant an opportunity to present his points for the Court’s consideration
Counsel presented Defendant’s points for the Court’s consideration of his motion
for postconviction relief on July 24, 2017. Additionally, on September 12, 2017,
Defendant’s trial counsel filed an affidavit in response to Defendant’s claims for
ineffective assistance of counsel.

Parties’ Contentions

Defendant filed his initial motion for postconviction relief on July 28, 2015.
Defendant argued, among other things, that counsel was not prepared for trial,
counsel gave Defendant limited time to accept the plea offer. In a document titled
“l\/Iemorandum of Law in support of Motion for Postconviction Relief,” Defendant
contends that counsel was “constitutionally deficient” for the following: failing to
advise Defendant whether to accept the States offer, failure to object to evidence that

was subject to misconduct at the medical examiner’s office, failure to advise

Defendant that the State was going to introduce incriminating videos, failure to
constitutionalize claims, failure to advise defendant on legal standards during a plea,
failing to review charges with Defendant before he denied the plea, failure to review
the strength of the State’s case, failing to properly communicate with Defendant and
review the consequences of the State’s offer, failure to review incriminating videos
and discuss Defendant’s potential sentence Additionally, in Defendant’s document
titled “Motion for Points and Considerations” Defendant argues that there was juror
misconduct during his trial and Mr. Brathwaite’s statement at trial was not voluntary.
Defendant also argues in this “Motion to Amend” that counsel failed to request a
“duress” instruction The State claims that Defendant’s ineffective assistance of
counsel claims fail as a matter of law, and his other claims are barred pursuant to the
Rule 61 procedural bars.
Discussion

The Court must address Defendant’s motion in regard to Rule 61(i) procedural
requirements before assessing the merits of his motion.l Rule 61(i)(1) bars motions
for postconviction relief if the motion is filed more than one year from final
judgment Defendant’s Motion is not time barred by Rule 6l(i)(l). Rule 61(i)(2)2

bars successive postconviction motions, which is also not applicable as this is

 

1 Super. Ct. Crim. R. 61(i)(1).
2 Super. Ct. Crim. R. 6l(i)(2).

Defendant’s first postconviction motion. Rule 61(i)(3) bars relief if the motion
includes claims not asserted in the proceedings leading to the final judgrnent.3 This
bar is also not applicable to Defendant’s ineffective assistance of counsel claim,
which could not have been raised in any direct appeal.4 However, this bar is
applicable to Defendant’s juror misconduct claim. Defendant did not claim juror
misconduct during his trial or during his appeal to the Delaware Supreme Court. In
his points for consideration he does not show how this prejudiced him or provide
any record of this for the Court to consider this as a valid point not barred under
61(i)(3). Therefore, Defendant’s juror misconduct claim is dismissed To the extent
that Defendant attempted to argue that he was operating under extreme emotional
distress which constitutes manslaughter and not murder, this argument is
procedurally barred because this could have been argued on appeal, and there was

no basis for an ineffective assistance of counsel claim on this issue.5

 

3 Super. Ct. Crim. R. 61(i)(3).
4 See State v. Berry, 2016 WL 5624893, at *4 (Del. Super. Ct. June 29, 2016); see

also Watson v. State, 2013 WL 5745708, at *2 (Del. Oct. 21, 2013).

5 The State’S briefing addresses extreme emotional distress, and Defendant’S
Postconviction counsel addresses this as self-defense in counsel’s motion to
withdraw as counsel. After reading Defendant’S contentions, the Court’s
interpretation of this “duress defense” claim is that Defendant argues he should have
been convicted of manslaughter and not murder because he was operating under the
influence of extreme emotional disturbance

4

Next, Rule 61(i)(4) bars relief if the motion is based on a formally adjudicated
ground.6 This bar is applicable to Defendant’s claim that Carlyle Braithwaite’s prior
recorded statement was “involuntary and coerced” and should not have been played
for the jury. To the extent that Defendant claims that this statement was improperly
admitted at trial, this claim is barred under Rule 61(i)(4) because the Delaware
Supreme Court decided this issue on appeal. Finally, Rule 6l(i)(5) presents an
avenue for Defendant to overcome the procedural bars, however, Defendant did not
satisfy the pleading requirements under this rule.7

Delaware adopted the two-prong test proffered in Strickland v. Washington to
evaluate ineffective assistance of counsel claims8 To succeed on an ineffective
assistance of counsel claim, a petitioner must demonstrate that “counsel’s
representation fell below an objective standard of reasonableness, and that there is a
reasonable probability that but for counsel’s unprofessional errors, the result of the

”9 The Court’s “review of counsel’s

proceeding would have been different
representation is subject to a strong presumption that representation was

professionally reasonable.”10 The “benchmark for judging any claim of

 

6 Super. Ct. Crim. R. 61(i)(4).

7 See Super. Ct. Crim. R. 61(i)(5).

8 See Strl`cklana’ v. Washington, 466 U.S. 668 (1984); see also Albury v. State, 551
A.2d 53 (Del. 1988).

9 Flamer v. State, 585 A.2d 736, 753 (Del. 1990); see also Stricklana’ v. Washington,
466 U.S. 668 (1984).

10 Ia’.

ineffectiveness [is to] 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.”ll First, to address Defendant’s medical examiner claim, trial
counsel filed an affidavit stating that the mishandled evidence at the Medical
Examiner’s Office was related entirely to drug evidence, and Defendant had no basis
to object or raise any issues with the State’s evidence because Defendant’s case is
entirely unrelated Next, as to Defendant’s claims regarding trial counsel’s alleged
failure to discuss the implications of the plea offer and the State’s case, trial
counsel’s affidavit demonstrates that these claims fail. Trial counsel avers that he
met with Defendant each time a plea offer was made and counsel discussed the
merits of the offers during both the initial trial and the retrial. Trial counsel also
stated that he discussed these implications with Defendant’S mother as well.
Additionally, trial counsel discussed the final plea offer with Defendant and he had
permission to use counsel’s cell phone to discuss this with his mother. Counsel
advised Defendant that he should take the plea offer and discussed the proposed
sentence recommendation, and Defendant chose to reject the offer.

Next, as to Defendant’s claims regarding the introduction of videos at his

second trial, trial counsel states that although it is not clear as to which videos

 

11 State v. Wrighr, 2015 WL 648818, (Del. Super. Ct. Feb. 12, 2015)(citations
omitted).
6

Defendant is referring to, he believes that this claim is in regard to videos that were
previously posted on social media of Defendant. In the videos Defendant is with
friends and was identified by the nickname “Smooth.” Trial counsel states that he
was unaware of these videos prior to the second trial because the State discovered
them after the second trial began. However, trial counsel avers that these videos
were introduced for the limited purpose of establishing Defendant’s nickname and
not to implicate him on the murder charge. Therefore, Defendant’s claims regarding
the videos introduced at trial fail. As to the rest of Defendant’s ineffective assistance
of counsel claims, trial counsel states that he routinely communicated with
Defendant, advised Defendant of the charges against him and the strengths of the
State’s case throughout the entire proceeding. Because Defendant cannot show that
Trial Counsel’s representation fell below an objective standard of reasonableness,
his Motion for Postconviction Relief pursuant to Rule 61 is hereby DENIED and
the outstanding Motion to Withdraw as Counsel is moot.
IT IS SO ORDERED.

M

The Honorable Calvin L. Scott, Jr.

