Davis v. State

• Court: Supreme Court of Delaware
• Decided: March 10, 2025
• Docket: 206, 2024
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ANDRE DAVIS, § § Defendant Below, § No. 206, 2024 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. N2004000621A/B § Appellee. §

Submitted: January 10, 2025 Decided: March 10, 2025

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.

ORDER

(1) The appellant, Andre Davis, has appealed the Superior Court’s denial

of his motion for postconviction relief under Superior Court Criminal Rule 61. After

careful consideration of the parties’ briefs and the record, we affirm the Superior

Court’s judgment.

(2) On the evening of April 4, 2020, Robert Tackett called 911 to report

that he had been shot. Tackett told a responding officer that he had been in his home

recording music with a man he knew as “Dre,” “Ray,” or “Raymond” when the man

shot Tackett. After shooting Tackett, the man had taken Tackett’s cell phone, exited

the residence, and gone into the house next door. Tackett described the shooter as a

black male, possibly in his twenties, with a short haircut, who was wearing a red hooded sweatshirt, blue jeans, and a black leg brace on his left leg. Tackett received

medical treatment for gunshot wounds to his hands and right shoulder and a gash on

the back of his head. At the hospital, he identified Davis from a six-photo array.

(3) Police ordered the occupants of the house where the suspect had gone

to exit, and they took Davis, who was wearing a leg brace, into custody. A photo of

Davis at the police station showed that he was wearing a leg brace, a blue shirt, and

greenish pants or jeans when he was detained. Davis had Tackett’s cell phone in his

pocket; an officer noticed that the phone appeared to have some blood on it. In the

house from which Davis had emerged, police found a five-chamber revolver

containing five spent cartridges.

(4) A Superior Court jury found Davis guilty of first-degree assault as a

lesser-included offense of attempted murder; possession of a firearm during

commission of a felony; and first-degree robbery. In a subsequent “B” trial, the

same jury found Davis guilty of possession of a firearm by a person prohibited and

possession of ammunition by a person prohibited. The Superior Court sentenced

Davis to a total of seventy-six years of imprisonment, suspended after fourteen years

for decreasing levels of supervision. This Court affirmed on direct appeal.1

(5) Davis then filed a timely motion for postconviction relief. The Superior

Court granted his motion for appointment of postconviction counsel. Postconviction

1 Davis v. State, 2023 WL 2617380 (Del. Mar. 23, 2023).

2 counsel later moved to withdraw, indicating that he had not identified any grounds

for postconviction relief that he could ethically advocate. The Superior Court denied

the motion for postconviction relief and granted postconviction counsel’s motion to

withdraw.2

(6) This Court reviews the Superior Court’s denial of a motion for

postconviction relief for abuse of discretion.3 We review legal or constitutional

questions, including claims of ineffective assistance of counsel, de novo. 4 The Court

considers the procedural requirements of Rule 61 before addressing substantive

issues.5

(7) Davis asserts various claims of ineffective assistance of counsel.

Ineffective-assistance claims raised in a timely first postconviction proceeding

generally are not procedurally barred.6 Under the “well-worn standards”7

established in Strickland v. Washington, to prevail on a claim of ineffective

assistance of counsel, a defendant must demonstrate that (i) his defense counsel’s

representation fell below an objective standard of reasonableness, and (ii) there is a

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

2 State v. Davis, 2024 WL 1715214 (Del. Super. Ct. Apr. 18, 2024). 3 Ploof v. State, 75 A.3d 811, 820 (Del. 2013). 4 Id. 5 Bradley v. State, 135 A.3d 748, 756-57 (Del. 2016). 6 Cephas v. State, 2022 WL 1552149, at *2 (Del. May 17, 2022) (citing Green v. State, 238 A.3d 160, 175 (Del. 2020)). 7 Ploof, 75 A.3d at 820.

3 proceeding would have been different. 8 Although not insurmountable, there is a

strong presumption that counsel’s representation was professionally reasonable. 9 A

defendant must make concrete allegations of actual prejudice to substantiate a claim

of ineffective assistance of counsel.10

(8) Davis contends that his trial counsel was ineffective because he did not

seek to “suppress” evidence relating to the clothes that Davis was wearing on the

night of the shooting. The clothes were not admitted into evidence, nor can we

discern any basis for seeking to exclude testimony regarding what the shooter was

wearing or what Davis was wearing when arrested. Rather, we understand Davis’s

argument to be that counsel did not effectively use the discrepancy between

Tackett’s description of the shooter’s clothing and the clothes depicted in the photo

of Davis at the police station to cast doubt as to identification. We agree with the

Superior Court’s determination that Davis did not establish prejudice as to this

issue.11 In closing argument, trial counsel pointed out that investigators never found

the red sweatshirt that Tackett said Davis was wearing. Even if counsel might have

more explicitly highlighted the differences between Tackett’s description of the

shooter’s clothing and the clothing depicted in the police-station photo, it is not

8 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). 9 Albury v. State, 551 A.2d 53, 59 (Del. 1988). 10 Bradley, 135 A.3d at 760. 11 Davis, 2024 WL 1715214, at *9.

4 reasonably probable that the jury’s verdict would have been different in light of the

other identification evidence, including the leg brace and Tackett’s testimony that

Davis, whom he knew, was the shooter.

(9) Davis also argues that counsel should have tried to show that Davis

“was never in possession of any other phone outside of his own.” He suggests this

could have been achieved by testing the phone for fingerprints or blood. We find no

prejudice as to this issue. The evidence that the phone in Davis’s pocket was

Tackett’s was overwhelming and included Tackett’s testimony that Davis took the

phone when Tackett tried to call 911; an officer’s testimony that Tackett told him

that Davis had taken Tackett’s “Cricket 422 cell phone;” and another officer’s

testimony that Tackett provided the officer with the pattern passcode for his phone

while at the hospital, and when the officer returned to the police station he used that

pattern to unlock the phone that had been recovered from Davis’s pocket. 12 It is not

reasonably probable that testing the phone for fingerprints or blood would have

changed the result of trial.

(10) Finally, Davis asserts that counsel did not spend enough time with him

preparing for trial, did not sufficiently inform him about the evidence against him,

12 Davis makes a conclusory assertion that the trial judge somehow limited the scope of cross- examination relating to the cell phone. To the extent that Davis is asserting this as other than an ineffective-assistance claim, it is procedurally barred and, in any event, it is not supported by the record.

5 and withheld discovery materials from him. As the Superior Court found, these

claims are not supported by the record,13 and Davis has not demonstrated that trial

counsel’s performance was deficient.

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

Court is AFFIRMED.

BY THE COURT:

/s/ Karen L. Valihura Justice

13 Davis, 2024 WL 1715214, at *7-8.