         IN THE SUPREME COURT OF THE STATE OF DELAWARE

    JHAVON GOODE,                              §
                                               §
           Defendant Below-                    §   No. 430, 2017
           Appellant,                          §
                                               §
           v.                                  §   Court Below—Superior Court
                                               §   of the State of Delaware
    STATE OF DELAWARE,                         §
                                               §   ID. No. 1404008621A (S)
           Plaintiff Below-                    §
           Appellee.                           §

                               Submitted: April 13, 2018
                                Decided: July 5, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                       ORDER

         Upon consideration of the parties’ briefs and the record on appeal, it

appears to the Court that:

         (1)    The appellant, Jhavon Goode, filed this appeal from the Superior

Court’s letter order, dated September 20, 2017, denying his first motion for

postconviction relief.1       After careful consideration, we find no merit to

Goode’s claims of ineffective assistance of counsel on appeal. Thus, we

affirm the Superior Court’s judgment.




1
    State v. Goode, 2017 WL 4164421 (Del. Super. Sept. 20, 2017).
         (2)     The record reflects that a Superior Court jury convicted Goode

in January 2015 of Assault in the First Degree, Possession of a Firearm During

the Commission of a Felony, and Carrying a Concealed Deadly Weapon for

the shooting of Jason Terry. Before his scheduled sentencing date, police

officers discovered a gun, which was confirmed to match shell casings found

at the crime scene. The Superior Court postponed Goode’s sentencing to

allow defense counsel the opportunity to conduct further testing of the weapon

and, if warranted, to file a motion for a new trial.

         (3)     The DNA testing of the gun was not completed by the time of

the next status conference, so defense counsel requested another continuance.

The Superior Court denied the request and proceeded with sentencing, noting

that if testing yielded some result that might require a new trial, Goode could

raise the issue on appeal and request a remand. The Superior Court then

sentenced Goode to a total period of twenty-five years at Level V

incarceration, with credit for time served, to be suspended after serving

thirteen years in prison for decreasing levels of supervision. This Court

affirmed Goode’s convictions and sentence on direct appeal.2

         (4)     With the assistance of court-appointed counsel, Goode filed his

first timely motion for postconviction relief, raising four claims of ineffective


2
    Goode v. State, 136 A.3d 303 (Del. 2016).


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assistance of counsel. After obtaining trial counsel’s affidavit, the State’s

response, and Goode’s reply, the Superior Court rejected all of Goode’s

claims. This appeal followed.

       (5)     Goode raises three claims in his opening brief on appeal.3 First,

he contends that his counsel on appeal was ineffective for failing to challenge

the Superior Court’s denial of his proposed jury instruction regarding

eyewitness identification. Second, Goode contends that his trial counsel was

ineffective for eliciting prejudicial hearsay testimony from the victim during

cross-examination. Finally, he contends that his counsel was ineffective for

failing to file a motion for a new trial based on the results of additional testing

of the gun.

       (6)     This Court applies the Strickland4 standard in reviewing claims

of ineffective assistance of counsel in a timely first postconviction proceeding.

Under Strickland, Goode must demonstrate that: (a) his counsel’s conduct fell

below an objective standard of reasonableness; and (b) there is a reasonable

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

proceeding would have been different.5 Goode is required to set forth and



3
  To the extent Goode raised other issues in the motion he filed in the Superior Court, he
has waived any right to further review of those claims on appeal by failing to argue them
in his opening brief. Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993).
4
  Strickland v. Washington, 466 U.S. 668 (1984).
5
  Id. at 687-88.


                                            3
substantiate concrete allegations of cause and actual prejudice.6 Moreover,

there is a “strong presumption” that counsel’s representation was

professionally reasonable.7

       (7)      Goode’s first argument is that his counsel on direct appeal was

ineffective for failing to challenge the Superior Court’s refusal to give his

proposed jury instruction regarding eyewitness identification.8 The record

reflects that defense counsel requested that the Superior Court give the

following instruction on eyewitness identification:

             An issue is this case is the identification of the defendant. To
      find the defendant guilty, you must be satisfied, beyond a
      reasonable doubt, that the defendant has been accurately identified,
      that the wrongful conduct charged in this case actually took place,
      and that the defendant was in fact the person who committed the
      act. If there is any reasonable doubt about the identification of the
      defendant, you must give the defendant the benefit of such doubt
      and find the defendant not guilty.
             Identification testimony is an expression of belief or
      impression by the witness. Its value depends upon the opportunity
      of the witness to observe the offender at the time of the offense,
      retain that memory and to make a reliable identification later. In
      appraising the identification testimony of Jason Terry you should
      consider the following:
             1.      Whether Mr. Terry had the capacity and an adequate
      opportunity to observe the offender, at the time of the offense.

6
  Younger v. State, 580 A.2d 552, 556 (Del. 1990).
7
  Strickland v. Washington, 466 U.S. at 689.
8
  In the Rule 61 motion he filed in the Superior Court, Goode also claimed that the Superior
Court’s denial of his proposed jury instruction violated his right to due process. The
Superior Court properly rejected that claim as procedurally barred under Rule 61(i)(4)
because it was previously adjudicated but neglected to address Goode’s contention that
appellate counsel was ineffective for failing to challenge the Superior Court’s ruling on
direct appeal.


                                             4
            Whether the witness had an adequate opportunity to observe
     the offender at the time of the offense will be affected by such
     matters as how long or short a time existed for the witness to make
     an observation, the distance between the witness and the person
     identified, lighting conditions, the witnesses [sic] attention,
     whether the witness had occasion to see or know the identified
     person previously.
            2.      Was the in-court identification made by Jason Terry
     a product of his own recollection? You may consider both the
     strength of the identification, and the circumstances under which
     the in-court identification was made. If the identification by Jason
     Terry [was] influenced by circumstances under which the
     Defendant was presented to him for identification, you should
     scrutinize the identification with great care. You may also consider
     the length of time that lapsed between the occurrence of the crime
     and the next opportunity for Jason Terry to see the Defendant as a
     factor bearing on the reliability of the identification.
            3.      Finally, you must consider the credibility of Jason
     Terry’s identification of the Defendant in the same way as any other
     witness, considering whether they are truthful, and considering
     whether they had the capacity and opportunity to make a reliable
     observation on the matter in their testimony.
            If you are not convinced beyond a reasonable doubt that the
     Defendant was the person who committed the crime, you must find
     the Defendant not guilty.

      (8)   The first paragraph of Goode’s proposed instruction reflected the

language of the Superior Court’s pattern jury instruction on eyewitness

identification. The additional paragraphs of the proposed instruction were

added by defense counsel, who conceded that, to counsel’s knowledge, such

an instruction had never been given to a Delaware jury. The Superior Court

rejected Goode’s proposed instruction in favor of giving the pattern

instruction. The Superior Court concluded that the pattern instruction was a



                                     5
correct statement of the law and that the additional paragraphs constituted

argument that defense counsel could raise in his closing argument to the jury.

       (9)    A defendant has an unqualified right to have the jury instructed

with a correct statement of the substance of the law.9 But, a defendant is not

entitled to a particular jury instruction.10 This Court will not reverse a trial

court’s jury instruction on appeal if the instruction was “reasonably

informative” and not misleading when “judged by common practices and

standards of verbal communication.”11

       (10) In Goode’s case, we find no merit to his postconviction claim

that his appellate counsel was ineffective on direct appeal for failing to

challenge the Superior Court’s denial of his requested instruction because the

underlying issue had no merit. Simply put, the Superior Court’s instruction

on eyewitness identification was a correct statement of the law,12 was

reasonably informative, and was not misleading.               Any challenge to the

Superior Court’s instruction on appeal would have been rejected.

Accordingly, appellate counsel’s failure to raise this argument on direct

appeal was not ineffective.


9
  Lloyd v. State, 152, A.3d 1266, 1271 (Del. 2016).
10
   Id.
11
   Phillips v. State, 154 A.3d 1146, 1160 (Del. 2017) (omitting citations).
12
   See Garden v. State, 815 A.2d 327, 339 (Del. 2003) (upholding the Superior Court’s use
of the pattern jury instruction on eyewitness identification, which was substantially the
same as the one used in Goode’s case, as a correct statement of the law).


                                           6
      (11) Goode next contends that his trial counsel was ineffective in

cross-examining Jason Terry on the circumstances of his out-of-court

identification of Goode as the person who shot him. While in the hospital,

Terry told police he did not know the name of the man who shot him but that

he would recognize the shooter if he saw him again. Later, Terry’s cousin,

Raye Boone, showed Terry a Facebook photo of Goode and told him that

Goode had been overheard bragging about shooting someone. After seeing

the photo, Terry was sure Goode was the shooter. At trial, the following

exchange occurred during the prosecutor’s direct examination of Terry:

      Q: How did [Boone] go about showing you this photo, what did
         she say?
      A: Well, these two individuals, after they shot me they had to go
         around town and brag and tell everybody.

The Superior Court immediately admonished Terry not to testify about things

that other people said and instructed the jury to disregard the comments.

      (12) Later, during defense counsel’s cross-examination of Terry, the

following exchange occurred:

    Q: Let me go back. At Milford [hospital], you could not identify
       who shot you?
    A: I didn’t know, no. I never seen him before.
    Q: You went to Christiana [hospital]?
    A. Right
    Q: Okay?
    A: Right.
    Q: You spoke with Detective Horsman.
    A: Yes, sir. Right.


                                      7
     Q: And you still couldn’t identify him?
     A: No, I could once I seen the picture on my cousin’s phone.
     Q: Precisely. And the following day you see the picture on your
        cousin’s phone?
     A: No, the first day I saw the picture on my cousin’s phone at
        Christiana. And that’s when I recognized him.
     Q: Before or after you talked to Detective Horsman?
     A: That was before I talked to Detective Horsman. She came there
        and showed me the picture first. Then Detective Horsman
        came and showed me the picture and was like, do you know
        this person, because I had a picture on my phone, as well.
     Q: Regardless, she shows you the picture and implies that this is
        the person that shot you, correct?
     A: No, she replies and she says we have an idea because they was
        going around town, somebody was going around town
        bragging about they shot somebody today. And they was in the
        area…
     Q: Let me stop you.

       (13) Goode contends that defense counsel’s cross-examination of

Terry was constitutionally ineffective because counsel should have

anticipated the risk of eliciting Terry’s inadmissible and prejudicial hearsay

comment that “somebody was going around town bragging about they shot

somebody today.” Goode contends that defense counsel’s error incriminated

him and that defense counsel compounded his mistake by failing to request a

curative instruction.13


13
   In rejecting this claim below, the Superior Court stated, “Defendant fails to mention that
the Court gave a sua sponte curative instruction immediately after the hearsay statements
were introduced.” State v. Goode, 2017 WL 4164421, at 2. While it is correct that the
Superior Court gave a curative instruction sua sponte after the hearsay statement was
elicited during the State’s direct examination of the witness, no curative instruction was
given after the same hearsay statement was elicited by defense counsel on cross-
examination. This statement is the subject of Goode’s present argument. The Superior


                                             8
       (14) In assessing the reasonableness of a defense attorney’s

challenged conduct, the United States Supreme Court held in Strickland that

judicial scrutiny of counsel’s performance “must be highly deferential” and

that every effort should be made “to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the time.”14 Goode

acknowledges that defense counsel’s goal in cross-examining Terry was to

undermine the reliability of Terry’s identification of Goode as the shooter by

suggesting that Terry could not name the shooter until his cousin showed him

Goode’s picture and suggested that Goode had done it.

       (15) In reviewing defense counsel’s cross-examination of Terry as a

whole, we find trial counsel’s questioning to fall within “the wide range of

professionally competent assistance.”15             Defense counsel asked Terry,

“Regardless, she shows you the picture and implies that this is the person that

shot you, correct?” The question was narrowly focused and required a yes or

no response. We reject Goode’s contention that defense counsel erred by

failing to anticipate that Terry’s response to the question would include his


Court’s conclusion that Goode’s argument was procedurally barred under Rule 61(i)(4) as
previously adjudicated is incorrect because the statement at issue in Goode’s direct appeal
was the hearsay statement made during direct examination and was subject to the Superior
Court’s curative instruction.
14
   Strickland v. Washington, 466 U.S. at 689.
15
   Id.


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cousin’s hearsay statement that “somebody was going around town bragging

[that] they shot somebody today.”

       (16) Moreover, we reject Goode’s contention that defense counsel

erred by failing to request a curative instruction. Defense counsel responded

to Terry’s hearsay statement by interrupting Terry’s answer and rephrasing

the question, which prompted Terry’s affirmative response.16                        We find

counsel’s choice to proceed in this manner, rather than interrupting his own

cross-examination by asking the trial judge to give a curative instruction, to

be entirely reasonable. Requesting a curative instruction would have drawn

the jury’s unwarranted attention to the hearsay testimony.                        Under the

circumstances, we conclude that counsel’s performance was well within the

bounds of reasonable professional conduct.

       (17) Goode’s final argument on appeal is that his trial counsel was

ineffective for failing to file a motion for a new trial based upon the post-trial

test results of the gun, which yielded no DNA evidence.17 Goode argues that


16
   Defense counsel’s next question after interrupting Terry’s response was, “She didn’t say
that, she shows you the picture and says, this is who we think shot you?” Terry replied,
“[y]es, and I identified the person because I know.”
17
   On direct appeal, Goode argued that the Superior Court abused its discretion in denying
his request for a continuance to allow additional time to test the gun. We rejected that
claim. In his postconviction motion, Goode argued below and argues on appeal that his
trial counsel was ineffective for failing to file a motion for new trial based on the results of
the gun testing. Goode’s claim of ineffective assistance of counsel was not, and could not
be, raised in his direct appeal. Leacock v. State, 690 A.2d 926, 928 (Del. 1996). Thus, we
reject the Superior Court’s rationale that Goode’s ineffective assistance of counsel claim


                                              10
the lack of DNA evidence connecting him to the gun supported a motion for

a new trial based on the insufficiency of the State’s evidence to prove him

guilty beyond a reasonable doubt.

       (18) We disagree. First, as a factual matter, the laboratory report with

the test results was not completed until October 13, 2015. Goode’s trial

counsel had ceased representing Goode sometime in June 2015 after filing a

notice of appeal on Goode’s behalf. Goode pursued his appeal with the

assistance of privately-retained counsel. Thus, Goode’s trial counsel had no

continuing duty—indeed, had no right—to pursue any relief on Goode’s

behalf after his representation ended.

       (19) More importantly, however, there simply was no reasonable

grounds for any lawyer to a file a motion for a new trial under these

circumstances. As we noted on Goode’s direct appeal, Terry’s testimony that

he was “one-hundred percent … sure” that Goode was the shooter—along

with a neighbor’s corroborating testimony placing Goode at the scene just

moments before the shooting—was more than sufficient to prove Goode’s

guilt beyond a reasonable doubt.18 The inconclusive post-trial test results




was procedurally barred by both Rule 61(i)(3), for his failure to raise the claim in the
proceedings leading to the judgment of conviction, and by Rule 61(i)(4), as previously
adjudicated.
18
   Goode v. State, 136 A.2d at 314.


                                          11
were not such evidence “as [would] probably change the result if a new trial

[were] granted.”19 Thus, even if a motion for a new trial had been filed, it

would not have been granted. Accordingly, Goode cannot establish cause or

prejudice to substantiate this ineffective assistance of counsel claim.

         NOW, THEREFORE, IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                              BY THE COURT:

                                              /s/ James T. Vaughn, Jr.
                                                    Justice




19
     Downes v. State, 771 A.2d 289, 292 (Del. 2001).


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