IN THE SUPREME COURT OF THE STATE OF DELAWARE
DONALD COLE, § § No. 353, 2017 Defendant-Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § Cr. ID. Nos. 0110006694A STATE OF DELAWARE, § 0309013358 § Plaintiff-Below, § Appellee. §
Submitted: February 14, 2018 Decided: February 28, 2018
Before STRINE, Chief Justice; VALIHURA, and SEITZ, Justices.
ORDER
This 28th day of February 2018, having considered the briefs and the record
below, it appears to the Court that:
(1) Donald Cole and Larry Johnson were charged with shooting and
injuring two residents while burglarizing a home on Lancaster Avenue in
Wilmington. Nine days later, Cole, Johnson, and Travanian Norton were accused
of shooting and killing two residents while burglarizing a home on 23rd Street in
Wilmington. The same guns were used in both burglaries.
(2) The State charged Cole for the Lancaster Avenue burglary along with
Elwood Hunter. Cole knew Hunter was not involved in the burglary and wanted to give a statement to exonerate him. Cole’s counsel advised him not to and warned
that if he did so, the State would likely charge him for the 23rd Street murders and
seek the death penalty. Cole nonetheless insisted on giving the statement, and the
parties negotiated a plea agreement. The parties disagree, however, on exactly what
the State promised Cole in exchange for the statement.
(3) According to the State, they agreed that if Cole pleaded guilty and gave
a statement providing information about both the Lancaster Avenue and 23rd Street
burglaries, they would “consider” waiving the death penalty for the 23rd Street
charges. They would not waive the death penalty, however, “until they knew the
content and substance of Cole’s statement.”1 According to Cole, he “believed that,
in exchange for [his] truthful statement, the State would not seek the death penalty.”2
In addition, Cole believed the statement would be used only for “review and
consideration of the death penalty,” and not “for any other purpose.”3 The agreement
was not reduced to writing.
(4) On January 14, 2003, Cole gave the statement. At the beginning of the
recording, the attorney for the State specified, “we are going to take [a] proper
statement of what you have to say about anything we ask you about and I’m going
1 Opening Br. at 6. 2 Id. 3 Id. at 6–7.
2 to take that statement back to my superiors and discuss with them whether to make
you an offer where you would be spared capital punishment.”4 The State said
nothing about using the statement for any other purpose. In his statement, Cole
exonerated Hunter and admitted his involvement in both the Lancaster Avenue and
the 23rd Street burglaries. He stated that Norton was an accomplice in the 23rd Street
burglary and that Johnson was an accomplice in both. Cole then pleaded guilty to
the charges of attempted first degree murder, first degree assault, and two counts of
possession of a firearm by a person prohibited for the Lancaster Avenue burglary
and shooting.
(5) Following the Lancaster Avenue plea, the State charged Cole with the
23rd Street murders and sought the death penalty. Cole filed a motion to prevent the
State from seeking the death penalty, arguing it had agreed to waive it in exchange
for his statement. The court denied Cole’s motion, finding “[t]he transcript
contain[ed] no promises about benefit to Cole as a result of the proffer, other than
[the State’s] willingness to consider the information and review [Cole’s] request
again with the senior staff.”5
(6) The State also questioned Norton about his involvement in the 23rd
Street burglary and played him a part of Cole’s recorded statement. After hearing
4 App. to Answering Br. at 28 (Cole Statement, State v. Cole, No. 30-01-87104, at 1 (Jan. 14, 2003)). 5 Cole v. State, 922 A.2d 364, 367 (Del. 2007).
3 that Cole implicated him, Norton agreed to give a statement and testify against Cole
in exchange for a favorable plea deal. Cole filed a motion to suppress all evidence
derived from his statement, including Norton’s statement and testimony, arguing that
the State did not reveal it was going to use the statement for any purpose other than
possible waiver of the death penalty. The court denied that motion as well, finding
the State had only agreed not to use the audiotape at trial.6 The court allowed Norton
to testify.
(7) Also prior to trial, an inmate, Gary Lloyd, came forward and said his
cellmate confessed to committing the burglary. Cole’s counsel did not investigate
Lloyd or his cellmate.7 According to Cole, his counsel only communicated with him
five times outside of court proceedings.8 At trial, Norton was the only witness to
implicate Cole. In his statement, Norton said that he saw Cole climb into a window
from the roof, but was not sure how Cole got onto the roof.9 At trial, however,
6 Cole v. State, 2006 WL 1134222, at *5 (Del. Super. Mar. 14, 2006), aff’d, 922 A.2d 364. This use was already prohibited by Delaware Rule of Evidence 410. See D.R.E. 410 (“Except as otherwise provided in this rule, evidence of a plea of guilty later withdrawn with court permission, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.”). 7 At a postconviction evidentiary hearing, Lloyd also denied making the statement, stating his cellmate “said he didn’t do it, that’s it.” App. to Opening Br. at 398–99 (Evid. Hr’g, State v. Cole, No. 0309013358, at 17–20 (Del. Super. June 29, 2015) (TRANSCRIPT)). 8 Opening Br. at 20. 9 App. to Opening Br. at 488 (Norton Statement, No. 01-87104, at 49 (July 30, 2003) (TRANSCRIPT)).
4 Norton testified that he saw Cole climb onto an open trash can and saw Johnson push
Cole up onto the roof.10 Norton also testified that once inside, he saw Cole shoot
one victim, and saw Cole and Johnson both shoot the other.11 The defense attorney
never visited the crime scene, but did cross-examine a state witness about the area,
including the lighting and the characteristics of the roof.12 On July 31, 2004, the
jury convicted Cole of four counts of first degree murder, first degree burglary,
second degree conspiracy, and five counts of possession of a firearm by a person
prohibited. The jury did not impose the death penalty, and the court sentenced Cole
to life in prison.
(8) Cole appealed the 23rd Street conviction, arguing the court erred in
denying his motion to suppress the statement and evidence derived from it.13 On
October 20, 2005, this Court remanded the case but retained jurisdiction, requiring
the Superior Court to make explicit factual findings regarding the proffer.14 The
10 Id. at 43, 59 (Trial Tr., State v. Cole, No. 0309013358, at 20, 82–84 (Del. Super. July 21, 2004) (TRANSCRIPT)). 11 Id. at 45–47 (Trial Tr., at 26–34). 12 Opening Br. Ex. A (Mem. Op., State v. Cole, Nos. 0110006694A, 0309013358, at 35–41 (Del. Super. Aug. 1, 2017)). 13 Appellant’s Opening Br., Cole v. State, 922 A.2d 354, 2005 WL 1923062 (Del. Super. June 17, 2005)). As for the Lancaster Avenue case, Cole filed a pro se motion for postconviction relief on February 10, 2006, which the Superior Court denied on August 20, 2007. On May 29, 2008, this Court remanded to allow Cole to be represented by an attorney, and on October 22, 2010, Cole filed an amended motion for postconviction relief. On September 21, 2012, the Superior Court Commissioner denied Cole’s motion for postconviction relief, which Cole appealed on October 5, 2012. The Superior Court affirmed the Commissioner’s decision on August 1, 2017. 14 Cole v. State, 922 A.2d 354 (Del. 2005).
5 court made the factual findings on March 14, 2006,15 and this Court affirmed Cole’s
convictions on March 12, 2007.16 On July 17, 2007, Cole filed a pro se motion for
postconviction relief, alleging ineffective counsel and insufficient evidence, which
the Superior Court denied on December 7, 2007.17 This Court affirmed on April 30,
2008.18 Next, Cole filed a petition for a writ of habeas corpus in federal court, which
was stayed at Cole’s request so he could file an amended motion for postconviction
relief in the Delaware Superior Court. He filed the motion on October 22, 2010,
alleging sixteen counts of ineffective counsel. On September 21, 2012, the Superior
Court Commissioner denied Cole’s amended motion,19 which Cole appealed. On
August 1, 2017, the Superior Court affirmed the Commissioner’s denial after
holding three days of evidentiary hearings and allowing Cole to appoint an
investigator and ballistics expert.
(9) On appeal, Cole argues the court abused its discretion in denying his
claim that his counsel were ineffective in negotiating and enforcing his plea deal and
in failing to communicate with him, to investigate a witness, and to investigate the
15 Cole, 2006 WL 1134222. 16 Cole, 922 A.2d 364. 17 App. to Opening Br. at 20. 18 Cole v. State, 947 A.2d 1120, 2008 WL 1887292 (Del. Apr. 30, 2008) (TABLE). 19 App. to Opening Br. at 229 (Comm’r’s R. & R., State v. Cole, No. 0309013358 (Del. Super. Sept. 21, 2012)).
6 crime scene. This Court reviews the denial of a motion for postconviction relief for
an abuse of discretion.20 Questions of law are reviewed de novo.21
(10) Cole first claims that the court abused its discretion in dismissing
“wholesale” his claim that his counsel were ineffective in the negotiation,
enforcement, and appeal of his plea deal, specifically because they failed to put the
agreement in writing. We first address the procedural bars in Rule 61(i) of the
Superior Court Rules of Criminal Procedure.22 A motion for postconviction relief is
barred by Rule 61(i)(1) if filed more than one year after final conviction; by Rule
61(i)(2) if not asserted in a prior postconviction motion; by Rule 61(i)(3) if
procedurally defaulted; and by Rule 61(i)(4) if formerly adjudicated.23 A claim not
formerly raised or adjudicated may be reconsidered “in the interest of justice.”24 In
addition, Rule 61(i)(5) provides an exception to the first three procedural bars if the
movant shows “a colorable claim that there was a miscarriage of justice because of
a constitutional violation that undermined the fundamental legality, reliability,
integrity or fairness of the proceedings leading to the judgment of conviction.”25 The
20 Zebroski v. State, 12 A.3d 1115, 1119 (Del. 2010). 21 Lewis v. State, 945 A.2d 1167, 2008 WL 880172, at *1 (Del. 2008) (TABLE). 22 Super. Ct. Crim. R. 61(i). We apply the version of Rule 61 in effect at the time the motion is filed. Bradley v. State, 135 A.3d 748, 757 (Del. 2016). Taylor filed this motion for postconviction relief in 2010, at which time the 2005 version of Rule 61 was in effect. 23 Super. Ct. Crim. R. 61(i)(1)–(4). 24 Id. 61(i)(2), (4). 25 Id. 61(i)(5). Whether allegations in a Rule 61 motion present a “colorable claim” under Rule 61(i)(5) is a question of law. Lewis, 2008 WL 880172, at *1. The court is “not obliged to opine
7 Rule 61(i)(5) “exception is narrow and only applies when the movant can present
some credible evidence that he has been denied a substantial constitutional right.”26
The standard may be met if the movant pleads a “meritorious ineffective assistance
of counsel claim that demonstrates a constitutional violation.”27
(11) The Superior Court found Cole’s claim that his counsel were ineffective
in negotiating the plea agreement was barred by Rule 61(i)(1) because it was not
filed within one year of conviction, and by Rule 61(i)(2) because it was not raised in
his first motion for postconviction relief.28 The court also found this claim was
barred by Rule 61(i)(4) as formerly adjudicated, because it was “premised in one
fashion or another on the contention that his counsel was ineffective during (a) his
plea negotiations . . . and (b) in their efforts to exclude evidence . . . derived from
the alleged misuse of Cole’s proffer.”29 Therefore, the court concluded, the claim
on the probability of success on these claims, but merely to ascertain whether, based on the allegations, a colorable claim or claims exist.” TCW Tech. Ltd. P’ship v. Intermedia Commc’ns, Inc., 2000 WL 1478537, at *2 (Del. Ch. Oct. 2, 2000). While a colorable claim does not “necessarily require a conclusive showing of trial error, mere ‘speculation’ that a different result might have [been] obtained certainly does not satisfy the requirement.” State v. Trump, 2004 WL 2827958, at *2 (Del. Super. Aug. 31, 2004), aff’d, 870 A.2d 1192, 2005 WL 583749 (Del. Mar. 9, 2005) (TABLE); see also State v. Poon, 2010 WL 703052, at *1 (Del. Super. Feb. 26, 2010). 26 State v. Ducote, 2011 WL 7063381, at *1 (Del. Super. Dec. 29, 2011) (citing Younger v. State, 580 A.2d 552, 555 (Del. 1990)). 27 State v. Flowers, 150 A.3d 276, 282 (Del. 2016). To plead a meritorious ineffective assistance of counsel claim, the movant must show that counsel’s representation fell below an objective standard of reasonableness, resulting in prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). 28 Opening Br. Ex. A. (Op. at 15–16). Cole’s conviction was final in 2007, and he filed this motion for postconviction relief in 2010. 29 Id. (Op. at 42–43).
8 was addressed when this Court rejected Cole’s argument that the statement should
have been suppressed, and thus was procedurally barred.30
(12) The Superior Court relied on State v. Wright, in which this Court
reversed the Superior Court’s decision and held that the court could not on its own
reconsider the defendant’s Miranda warnings, because “the admissibility of Wright’s
confession has been challenged and upheld repeatedly.”31 The Court held that “a
defendant is not entitled to have a court re-examine an issue that has been previously
resolved ‘simply because the claim is refined or restated.’”32 In the instant case, the
Superior Court held that Cole’s claim of ineffective assistance in negotiating the plea
merely “refined or restated” his claim that the motion should have been suppressed,
and thus found it procedurally barred.33
(13) On appeal, Cole argues the court abused its discretion because this
specific claim was not formerly adjudicated. Cole explains that he was “not
rearguing the suppression of evidence” in this motion, but rather was alleging
“constitutional deficiencies” in his counsel’s negotiation and enforcement of the
30 Cole, 2006 WL 1134222. 31 67 A.3d 319, 323 (Del. 2013), as amended (May 28, 2013). The Miranda warnings had already been found effective on a motion to suppress at trial, on direct appeal, on a motion for postconviction relief, and on that motion’s appeal. Id. 32 Id. (citations omitted). 33 Opening Br. Ex. A (Op. at 43–44).
9 agreement.34 Cole argues the Court should apply Lacombe v. State,35 in which this
Court found an ineffective counsel claim was not barred under Rule 61(i)(4).36 In
Lacombe, the Superior Court previously adjudicated and decided that the
defendant’s sentence was not disproportionate.37 In the postconviction motion,
however, the movant claimed that his counsel were ineffective for failing to present
a case comparison when arguing that the sentence was disproportionate.38 This
Court explained that the defendant “alleged a specific deficiency in Appellate
Counsel’s performance that was not raised on direct appeal.”39 The Court thus
concluded that the ineffective assistance claim was legally distinct and not barred as
formerly adjudicated under Rule 61(i)(4).40
(14) Cole’s situation is more similar to the situation in Lacombe than that in
Wright. In Wright, the court addressed the exact issue that was already addressed
below—whether the Miranda warnings were effective. However, in Lacombe, the
court found the two issues—whether the sentence was disproportionate and whether
his counsel were ineffective in arguing it—were distinct. In the instant case, the
34 Id. at 14. 35 163 A.3d 708, 2017 WL 2180545, at *3 (Del. May 17, 2017) (TABLE). 36 Opening Br. at 15–16. 37 2017 WL 2180545, at *3. 38 Id. 39 Id. (“[T]he argument itself is not that the sentence is disproportionate. Rather, the claim here is that Appellate Counsel was ineffective for citing only one case from another jurisdiction.”). 40 Id.
10 issues—whether the statement should have been suppressed and whether his counsel
were ineffective in negotiating the plea—are also distinct. Thus, Cole’s claim was
not formerly adjudicated and is not barred by 61(i)(4).41
(15) The claim is still procedurally barred, however, by Rules 61(i)(1)
and (2), and thus Cole can only proceed if he can overcome these bars by meeting
the requirements of Rule 61(i)(5). To do so, he must state a colorable constitutional
claim that his counsel were ineffective.42 A “colorable” claim is one that establishes
a reasonable probability of prejudicial error.43 In Lacombe, this Court found that
because the Superior Court already determined the sentence was not
disproportionate, “[c]ounsel’s failure to provide a survey of comparable cases had
no impact on the direct appeal.”44 Similarly, here, the court made thorough factual
findings about what the parties agreed to at the time Cole gave a statement.45 The
41 Cf. Barrow v. State, 913 A.2d 569 (Del. 2006) (holding the claim that counsel were ineffective for failing to timely file a motion to suppress was barred by Rule 61(i)(4) because the court already found that admitting the statement did not prejudice the defendant). 42 State v. Mayfield, 2003 WL 21267422, at *3 (Del. Super. June 2, 2003) (quoting State v. Getz, 1994 WL 465543 (Del. Super. July 15, 1994), aff’d, 651 A.2d 787 (Del. 1994)). 43 See, e.g., Getz, 1994 WL 465543, at *11. 44 Lacombe, 2017 WL 2180545, at *4. 45 Cole, 2006 WL 1134222, at *1 (“Cole and Miller agreed before the proffer that the proffer would be used in two ways. First, they implicitly agreed that the statement would be used to determine whether the State would dismiss the charges against Hunter who was likely to be wrongly convicted. . . . Second, Cole and Miller explicitly agreed that the State would use the statement to evaluate the propriety of waiving the death penalty in connection with the prosecution of the 23rd Street double murders.”); id. at *5 (“When Cole gave the statement, he knew of the ballistics link between Lancaster Avenue and 23rd Street, and he knew that by giving the statement he ‘would likely be convicted.’”); id. (“Little is certain in this case, but the fact that [Cole’s defense counsel]
11 court found Cole’s statement was admissible, and this Court affirmed, even though
his counsel did not put the plea in writing.46 Thus, even if Cole’s counsel were
ineffective, Cole cannot establish a reasonable probability that the result would have
been different had the agreement been in writing.47 Thus, Cole does not meet the
exception of Rule 61(i)(5), and therefore his claim remains procedurally barred by
Rules 61(i)(1) and (2).
(16) Cole next claims the Superior Court abused its discretion by denying
his claim that his counsel were ineffective for failing to communicate with him,
failing to investigate the crime scene, and failing to investigate a witness. The court
found Cole’s claims were barred by Rule 61(i)(1) as untimely and Rule 61(i)(2) as
not raised in his previous motion. Thus, the court analyzed whether Cole could
overcome these bars by alleging a colorable claim of ineffective counsel under Rule
61(i)(5).48
counseled against the proffer has never been disputed.”); id. (“I conclude that the agreement before and after the proffer was that the only limitation on the use of the statement was D.R.E. 410.”). 46 Cole, 922 A.2d at 373 (“We are compelled to stress that the parties easily could have avoided the confusion caused by the resulting misunderstanding by putting their agreement in writing or on the record before the proffer.”); Cole, 2006 WL 1134222, at *5 (“The voluntary nature of the statement, given against advice of counsel, the corroboration requirement; the explanation of Miller; the post-statement arrival of the ‘investigative purposes’ limitation; Cole’s affidavit where he says that he knew the State would check out the statement, and that he would be convicted of the 23rd Street murders; lead me to conclude that the limitation on the use now asserted was not contemplated at the time the proffer was taken.”). 47 Strickland, 466 U.S. at 687–88. 48 The court requested argument on whether asserting a violation of Sixth Amendment rights alone was enough to satisfy 61(i)(5) and overcome the procedural bars. The court concluded that merely invoking the Sixth Amendment did not satisfy Rule 61(i)(5). Rather, the movant must allege
12 (17) First, the court found that Cole’s claim that his counsel were ineffective
for failing to communicate with him did not state a colorable claim under
Rule 61(i)(5), because he could not establish prejudice. On appeal, Cole’s only
assertion of prejudice is that his counsel’s failure to communicate “put him at a
significant disadvantage as he was completely unaware of what was happening with
his case and how to help his attorneys.”49 In his postconviction motion, his claims
of prejudice rely on the assertions that his counsel failed to discuss strategies with
him and that he could have provided his counsel with information about the area the
crime took place and about Travanian Norton’s credibility. But, “[a] defendant must
make specific allegations of actual prejudice and substantiate them.”50 Cole cannot
establish that the strategies or information he could have provided would have
resulted in a different outcome. Thus, his allegations are insufficient to establish
actual prejudice,51 and his claim remains procedurally barred by Rules 61(i)(1)
and (2).
(18) Next, the Superior Court held Cole’s allegation that his counsel were
ineffective for failing to investigate the crime scene stated a colorable claim. The
court found that his “trial counsel’s failure to visit the scene was less tha[n] what a
“sufficient facts to make out a facially sufficient Sixth Amendment claim.” Opening Br. Ex. A (Op. at 2). 49 Id. at 21. 50 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996). 51 See Getz, 1994 WL 465543, at *11.
13 reasonable attorney would do.”52 In addition, the court found Cole sufficiently
alleged “specific facts which, if true, would show that the witness’s testimony [that]
he saw Cole enter the victims’ home through a second floor window was false.”53
Thus, Cole met the requirements of Rule 61(i)(5) by showing a colorable
constitutional violation. The court considered the claim on the merits but rejected
it, finding Cole could not establish prejudice.
(19) On appeal, Cole alleges that he was prejudiced because had his counsel
visited the crime scene, they would have discovered that the lighting was poor, that
Norton’s view was blocked by a tall fence, and that Cole could not have climbed
onto the roof. However, as the Superior Court noted, Cole’s counsel thoroughly
cross-examined a state witness about the lighting at the scene, there was a low fence
Norton easily could have seen over, and Cole’s counsel told the jury that climbing
onto the roof was “very difficult” if not “impossible.”54 They also effectively cross-
examined a police witness about the difficulty of climbing onto the roof.55 Thus, the
Superior Court properly found that Cole had not demonstrated that there was a
reasonable probability that the result would have been different had his counsel
visited the crime scene.
52 Opening Br. Ex. A (Op. at 35). 53 Id. (Op. at 21). 54 Id. (Op. at 33). 55 Id. (Op. at 35–41).
14 (20) Lastly, Cole argues his counsel were ineffective for failing to
investigate witness Gary Lloyd, who told the police that his cellmate had confessed
to the crime. The Superior court found this claim failed to meet the requirements of
Rule 61(i)(5). Trial counsel does not have to interview every possible witness;
“[i]nstead, counsel is simply required to exercise reasonable professional judgment
in deciding whether to interview a witness.”56 As the Superior Court noted, Cole
admitted to the crime, and thus his counsel knew the alleged confession was false
and were not ineffective for declining to investigate Lloyd.57
NOW, THEREFORE, it is hereby ORDERED that the judgment of the
Superior Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr. Justice
56 State v. Jackson, 2014 WL 4407844, at *7 (Del. Super. Sept. 3, 2014), aff’d, 124 A.3d 1015 (Del. 2015) (quoting Lewis v. Mazurkiewicz, 915 F.2d 106, 113 (3d Cir. 1990)). 57 Opening Br. at Ex. A. (Op. at 90–91); see also Del. R. Prof. C. 3.3(A)(3) (“A lawyer shall not knowingly: . . . (3) offer evidence that the lawyer knows to be false.”); Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (“When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect.”).