IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
Plaintiff, §
v. )) Cr. ID. No. 1511007472A and
) 1 5 1 1 007472B
ISAIAH PALMER, §
Defendant. §
)

Submitted: November 5, 2018
Decided: January 31, 2019

COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
SHOULD BE DENIED

John S. Taylor, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Eugene J. Maurer, Jr., Esquire, 1201-A King Street, Wilrnington, Delaware 19801,
Attorney for Defendant lsaiah Palmer.

PARKER, Commissioner

This 3lst day of January, 2019, upon consideration of Defendant’s Motion

for Postconviction Relief, it appears to the Court that:
BACKGROUND AND PROCEDURAL HISTORY

1. On December 21, 2015, Defendant Isaiah Palmer Was indicted on charges of
two counts of Possession of a Firearrn During the Commission of a Felony
(“PFDCF”), one count of Possession of a Firearm by a Person Prohibited
(“PFBPP”), one count of Possession of Ammunition by a Person Prohibited
(“PABPP”), Drug Dealing in a Tier 4 quantity and Possession of a Controlled
Substance in a Tier 5 quantity.
2. On March 1 1, 2016, Palmer filed a Motion to Suppress Evidence. The court
denied the motion.l
3. After the denial of the suppression motion, the case proceeded to trial. Prior
to jury selection, Palmer requested and Was granted the severance of the PFBPP
and PABPP charges from the remainder of the case. The “A” case Went to a jury
and the “B” case (PFBPP and PABPP) Was a simultaneous bench trial.
4. The jury Was selected on July 6, 2016. Following a two-day trial, the jury
found Palmer guilty of Possession of a Controlled Substance in a Tier 5 quantity

and PFDCF. The jury found Palmer not guilty of Drug Dealing in a Tier 4 quantity

 

' Sm¢e v. Palmer, 2016 WL 2604692 (Del.super.).

and the related PFDCF charge. The Superior Court found Palmer guilty of the “B”
counts of PFBPP and PABPP.
5. Prior to sentencing the State moved to declare Palmer a habitual offender.2
Following a pre-sentence investigation, on September 16, 2016, the Superior Court
declared Palmer a habitual offender pursuant to 11 Del. C. § 4214(c).
6. The Superior Court sentenced Palmer to a total unsuspended sentence of 42
years at Level V incarceration followed by probation.
7. Palmer filed a direct appeal to the Delaware Supreme Court. On July 7,
2017, the Delaware Supreme Court determined that the appeal Was Without merit,
upheld the denial of his suppression motion, and affirmed the judgment of the
Superior Court.3

LCT_S
8. During the second Week of October 2015 , a confidential informant informed
officers from the Wilmington Police Department that a residence located at 311
West 29th Street in Wilmington, Delaware Was used as a “stash house” for
Weapons.4 Based on the tip, the officers conducted surveillance of the residence

and observed a high frequency of activity coming from the residence With multiple

 

2 Superior Court Docket Nos. 33 & 34.
3 Palmer v. State, 2017 WL 2924195 (Del.).
4 Palmer v. Smre, 2017 WL 2924195, *1 (Del.).

subjects responding and entering for short periods of time and then leaving.5 To
the officers, this observation was consistent with the allegation that the residence
was a “stash house” for weapons and/or illegal drugs.6

9. In November of 2015, the officers received another tip from another
confidential informant that a black male named ISaiah Palmer lived at 311 West
29th Street and that his residence was being used as a “stash house” for other
individuals’ weapons, and that firearms were being stored in an exterior shed.7

10. After obtaining a search warrant, on November 12, 2015, the Wilmington
Police Department executed the warrant. When the police arrived, there were four
individuals, apparently relatives of Palmer, in the residence, but he was not there.
Palmer arrived later during the execution of the search warrant.8

11. In a cubbyhole near the basement steps was a bag labeled “1-95 Enter” and
within it were nine bundles of heroin containing .117 grams. Additional bags of
heroin were found outside of the residence in recycling bins. Those bags were
stamped with the phrase “Nike” and weighed 20.91 grams.9 In total 2,581 bags of
heroin was seized. In addition, five separate types of ammunition were found in

the rear shed. Palmer, along with the other family members, indicated that his

 

5 Id.

6 Id.

7 Id.

8 Id.

9 Palmer v. Stale, 2017 WL 2924195, *1 (Del.); State v. Palmer, 2016 WL 2604692, *2
(Del.Super.).

bedroom was in the basement.10 Inside the basement bedroom, police observed a
bed, men’s clothing and a dresser along with a box sitting on a table several feet
past the foot of the bed. On top of the box, police found a loaded Taurus PT .45
caliber handgun with eight rounds of ammunition.ll

PALMER’S PENDING RULE 61 MOTION
12. On July 3, 2018, Palmer, with the assistance of counsel, filed the pending
Rule 61 motion. In the subject motion, Palmer raises one claim. Palmer claims
that trial counsel’s failure to call Palmer’s cousin Samuel Palmer as a witness at
trial was ineffective and resulted in prejudice to Palmer,
13. Before making a recommendation, the record was enlarged and Palmer’s
trial counsel submitted an Affidavit responding to Palmer’s claim, the State
submitted a response, and Palmer was afforded an opportunity to submit a reply
thereto.12
14. In order to prevail on an ineffective assistance of counsel claim, Palmer must
meet the two-pronged Stricklana’ test by showing that: (1) counsel performed at a
level “below an objective standard of reasonableness” and that, (2) the deficient

performance prejudiced the defense.l3

 

lOId

'l Palmer v. State, 2017 WL 2924195, *1 (Del.); State v. Palmer, 2016 WL 2604692, *2
(Del.Super.).

12 Super.Ct.Crim.R. 6l(g).

13 Strl`ckland v. Washington, 466 U.S. 668, 687-88, 694 (1984).

The first prong requires the defendant to show by a preponderance of the evidence
that defense counsel was not reasonably competent, while the second prong
requires him to show that there is a reasonable probability that, but for defense
counsel’s unprofessional errors, the outcome of the proceedings would have been
different.14

15. Mere allegations of ineffectiveness will not suffice; instead, a defendant
must make and substantiate concrete allegations of actual prejudice.15 Although
not insurmountable, the Strickland standard is highly demanding and leads to a
strong presumption that counsel’s conduct fell within a wide range of reasonable
professional assistance.16 Moreover, there is a strong presumption that defense
counsel’s conduct constituted sound trial strategy.17

16. In considering post-trial attacks on counsel, Strickland cautions that trial
counsel’s performance should be reviewed from the defense counsel’s perspective
at the time decisions were being made.18 lt is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that a particular act
or omission of counsel was unreasonable.19 A fair assessment of attorney

performance requires that every effort be made to eliminate the distorting efforts of

 

‘41d. 31687-88, 694.

15 Younger v. State, 580 A.2d 552, 556 (Del. 1990).

16 Albury v. sze, 551 A.2d 53, 59 (Del. 1988); Salih v. Sza¢e, 2008 WL 4762323, ar *1 (Del.
2008)

17 Strl`ckland v. Washington, 466 U.S. 668, 689 (1984).

18 Szrickzand, 466 U.s. a1688-89.

19 Strickland, 466 U.S. at 688-89.

hindsight. Second guessing or “Monday morning quarterbacking” should be
avoided.20

17. lt is against this backdrop that Palmer’s claim of ineffective assistance of
counsel is considered.

18. Trial counsel explained that his trial strategy was to establish reasonable
doubt that Isaiah Palmer had knowing possession of the items seized.21 To that
end, trial counsel presented numerous photographs through an investigator that
tended to demonstrate Palmer’s lack of proximity to the items. Moreover, counsel
established through police witnesses that the items were found in easily accessible
areas in a very high crime and high drug dealing part of town.22

19. Trial counsel explained that his decision not to call Samuel Palmer as a
witness at trial was a tactical decision.23 Trial counsel explained that Samuel
Palmer was with Isaiah Palmer on the night the search warrant was executed.
Samuel was also charged with drug and weapons offenses, although his charges
were dismissed a couple weeks later. Samuel went to the police station the night

of the search warrant and gave a statement essentially stating all of the items seized

 

20 Strickland, 466 U.S. at 688-89.

21 Superior Court Docket No. 57- Affidavit of Trial Counsel in response to Rule 61 motion,

22 Superior Court Docket No. 57- Affidavit of Trial Counsel in response to Rule 61 motion,

23 Superior Court Docket No. 57- Affidavit of Trial Counsel in response to Rule 61 motion;
Petitioner Isaiah Palmer’s Rule 61 Motion, Exhibit B, November 13, 2015 Interview of Samuel
Palmer, at pgs. 2-3.

were his and that no one else knew about them.24

20. However, there were significant problems with Samuel’s statement to the
police. Samuel did not accurately describe the items seized. He described the
firearm correctly, but said it was “by the bed,” which is not where it was found.25
Samuel was not accurate about the heroin. He said there were only “probably over
100 bags” of heroin in the trashcan, when in fact there were over 2,400 bags of
heroin in that trashcan.26

21. Samuel could not describe how the heroin was packaged He was correct
about the “Nike” stamp on the heroin in the trashcan but did not know anything
about the other heroin seized from the cubbyhole (which had a different stamp).27
22. Samuel could not accurately describe the ammunition seized. He said he
had some ammunition in the shed for a 9 mm firearm. He said he thought it was in
a sock.28 In actuality, the ammunition was in a white plastic bag and contained .45

caliber ammunition, .3 80 caliber ammunition, and .38 special ammunition.29

 

24 Superior Court Docket No. 57- Affidavit of Trial Counsel in response to Rule 61 motion;
Petitioner lsaiah Palmer’s Rule 61 Motion, Exhibit B, November 13, 2015 Interview of Samuel
Palmer, at pgs. 2-3.

25 Superior Court Docket No. 57- Affidavit of Trial Counsel in response to Rule 61 motion.

26 Superior Court Docket No. 57- Affidavit of Trial Counsel in response to Rule 61 motion;
Petitioner Isaiah Palmer’s Rule 61 Motion, Exhibit B, November 13, 2015 Interview of Samuel
Palmer, at pgs. 5-6.

27 Superior Court Docket No. 57- Affidavit of Trial Counsel in response to Rule 61 motion;
Petitioner Isaiah Palmer’s Rule 61 Motion, Exhibit B, November 13, 2015 Interview of Samuel
Palmer, at pgs. 4-8, 11, 13 (Sam was not aware of anything illegal in the cubby hole).
28Petitioner Isaiah Palmer’s Rule 61 Motion, Exhibit B, November 13, 2015 Interview of Samuel
Palmer, at pg. 1 l.

29 Superior Court Docket No. 57- Affidavit of Trial Counsel in response to Rule 61 motion,

23. Finally, Samuel stated that ISaiah stayed upstairs in the house3°, when it was
obvious that Isaiah stayed in the basement In fact, ISaiah Palmer, along with the
other family members present at the residence at the time of the search, indicated
that his bedroom was in the basement.31 A probation officer had also previously
confirmed this by way of a home visit.32

24. The police did not believe Samuel; their assessment was that he was trying
to “take the charges” for his cousin. As a result of Samuel’s statement, he was
charged with providing a false statement to police. The State would later enter a
nolle prosequi on that charge and others.33

25. An additional problem with Samuel’s statement is that it did not necessarily
negate Isaiah Palmer’s joint possession of the drugs, firearm and ammunition,34

26. Trial counsel wanted to avoid any potential evidence of joint possession so
that a joint possession instruction would not be given.35 Over trial counsel’s
objection, the court gave a joint possession instruction anyway. The jury was,

therefore, instructed that two or more individuals could jointly possess items.36

 

30Petitioner Isaiah Palmer’s Rule 61 Motion, Exhibit B, November 13, 2015 Interview of Samuel
Palmer, at pg. 4.
31Palmer v. State, 2017 WL 2924195, *l (Del.).
32 Superior Court Docket No. 57- Affidavit of Trial Counsel in response to Rule 61 motion,' See,
Palmer v. State, 2017 WL 2924195, *1 (Del.) (Palmer, along with other family members,
indicated that his bedroom was in the basement.)
;: Superior Court Docket No. 57- Affidavit of Trial Counsel in response to Rule 61 motion.

Id.
35 Superior Court Docket No. 57- Affidavit of Trial Counsel in response to Rule 61 motion.
36 Superior Court Docket No. 57- Affidavit of Trial Counsel in response to Rule 61 motion.

27. This joint possession issue was again raised by appellate counsel on direct
appeal. Isaiah Palmer argued that a joint possession jury instruction should not
have been given at trial as there was no evidence introduced at trial to suggest that
Palmer’s connection with drug-related activities was a joint endeavor involving
any other residents of 311 West 29th Street. There was also no evidence that he
was acting in concert with any other individuals who did not live in the residence.37
28. The Delaware Supreme Court held that the joint possession instruction was
properly given.38 The trial court gave the instruction because there were other
people in the residence when the police arrived to do the search and there was
evidence that other people had access to the residence. The Delaware Supreme
Court ruled that the joint possession instruction was supported by the evidence at
trial and properly given.39 The Delaware Supreme Court noted that it was still the
State’s burden to prove that lsaiah Palmer possessed the drugs, but not to show that
he had exclusive possession The instruction still required the jury to find beyond
a reasonable doubt that Isaiah Palmer possessed the drugs in order to find him
guilty.40

29. Trial counsel stated that Samuel wanted to testify, and even came to

counsel’s office once or twice asking to meet with counsel. Trial counsel

 

37See, Palmer v. State, 2017 WL 2924195, *3 (Del.).
381d
39 Id
401d

explained to Isaiah and Isaiah’s mother that counsel thought Samuel’s testimony
would backfire in front of the jury, and his lack of knowledge, especially about the
ammunition and the heroin, would damage his credibility.41

30. Counsel thought that calling Samuel as a witness at trial would lead the jury
to the same conclusion the police reached: that Samuel was trying to assume the
responsibility to get his cousin Isaiah out of trouble and that Samuel should not be
believed.42

31. Given counsel’s concerns with the inaccuracies of Samuel’s statement, and
the fact that the statement would not negate a theory of joint possession, counsel
made the strategic decision that the cleaner and better option was not to call
Samuel as a witness. Instead trial counsel’s strategy was to attack the elements of
“knowing” and “possession” as to Isaiah.43

32. Although trial counsel recognizes that he could have taken a different
approach and called Samuel as a witness, he made a strategic decision not to do
so.44

33. The decision as to whether or not to call a witness and how to examine

and/or cross-examine witnesses who are called are tactical decisions.45

 

41 Superior Court Docket No. 57- Affidavit of Trial Counsel in response to Rule 61 motion.
42 Superior Court Docket No. 57- Affidavit of Trial Counsel in response to Rule 61 motion,
43 Superior Court Docket No. 57- Affidavit of Trial Counsel in response to Rule 61 motion.
44 Superior Court Docket No. 57- Affidavit of Trial Counsel in response to Rule 61 motion,
45 Outten v. State, 720 A.2d 547, 557 (Del. 1998).

10

Great weight and deference are given to tactical decisions by the trial attorney.
There is a strong presumption that defense counsel’s conduct constituted sound
trial strategy.46

34. The United States Supreme Court recognized that there are countless ways
to provide effective assistance in any given case.47 Even the best criminal defense
attorneys would not defend a particular client in the same way. Consequently,
defense counsel must be given wide latitude in making tactical decisions.48
Counsel’s representation must be judged by the most deferential of standards.49

35. Palmer’s trial counsel made a reasonable strategic decision. Perhaps
reasonable minds may differ and another attorney defending Palmer may have
made a different decision in deciding whether or not to call Samuel as a witness. A
fair assessment of attorney performance requires that every effort be made to
eliminate the distorting efforts of hindsight. Trial counsel must be given wide
latitude in making tactical decisions. There is a strong presumption that counsel’s
conduct constituted sound trial strategy. Isaiah Palmer has not met his burden to
overcome this strong presumption that trial counsel’s conduct was reasonable and

constituted sound trial strategy.

 

46 Strl'ckland v. Washington, 466 U.S. 668, 689 (1984); Harrl`ngton v. Richter, 131 S.Ct. 770
(2011).

47 Harrington v. Richter, 131 S.Ct. 770, 787-788 (2011).

48 Harrington v. Richter, 131 S.Ct. 770, 788-789 (2011).

49 Outten v. State, 720 A.2d 547, 557 (Del. 1998); Strickland v. Washington, 466 U.S. 668, 689
(1984); Harrl`ngton v. Richter, 131 S.Ct. 770 (2011).

11

36. Finally, even if lsaiah Palmer had established that trial counsel’s decision
not to call Samuel was deficient (which he did not), he has not met the second
prong of Strickland and established actual prejudice as a result thereof. Even if
Samuel had testified, he clearly did not have any knowledge about the heroin in the
cubbyhole, the quantity of the drugs in the recycle bins, and of the different types
of ammunition stored in the shed. lt is unlikely that the jury could have found that
the drugs and ammunition he did not even know existed belonged to him, and to
him alone. lt is also unlikely that the jury would have believed that the gun in the
basement bedroom was exclusively Samuel’s and that he was the only one aware
of its existence when, quite obviously, someone else must have placed the gun in
the location where it was found since Samuel did not know the location of the gun.
There was no prejudice from not calling him.

37. lsaiah Palmer failed to establish that his counsel’s strategic decision not to
call Samuel as a witness was deficient in any respect or that he was actually
prejudiced as a result thereof. Palmer’s claim raised in his Rule 61 motion is
without merit.

38. Isaiah Palmer’s request for an evidentiary hearing is denied. Following a
full, comprehensive and thorough review of the evidentiary record, Palmer’s

allegations were either reasonably discounted as not supported by the record or not

12

material to a determination of Palmer’s claim. lt does not appear that an

evidentiary hearing will aid in the resolution of this motion and is denied.

For all of the foregoing reasons, Defendant’s Motion for Postconviction

Relief should be DENIED.

IT IS SO RECOMMENDED.

 

Commissionel//fynne M. Parker

cc: Prothonotary
Patrick J. Collins, Esquire

13

