Phillips v. State

• Court: Supreme Court of Delaware
• Decided: March 25, 2020
• Docket: 359, 2019
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JEFFREY PHILLIPS, § § No. 359, 2019 Defendant Below, § Appellant, § § Court Below: Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § § Cr. ID No. 1210013272(N) Plaintiff Below, § Appellee. §

Submitted: February 19, 2020 Decided: March 25, 2020

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

ORDER

This 25th day of March, 2020, having considered the briefs and the record

below, it appears to the Court that:

(1) The police arrested Jeffrey Phillips and Otis Phillips, who are unrelated,

for gang-related murders and assaults. A jury convicted Jeffrey of most of the crimes

charged, but acquitted him of one charge and reduced two others. The Superior

Court judge sentenced Jeffrey to life plus seventy-two years in prison. On direct

appeal, this Court affirmed his convictions. A Commissioner denied Jeffrey’s

motion for postconviction relief, which the Superior Court adopted. Jeffrey now

appeals from the Superior Court’s denial of postconviction relief. After a careful review of the record and the Superior Court’s decisions, we find that the court did

not abuse its discretion, and affirm the convictions.

(2) In 2008, Herman Curry witnessed a murder in a nightclub. 1 He

identified Otis as the shooter. On July 7, 2012, Kelmar Allen, the state’s primary

witness against Jeffrey,2 removed Jeffrey from a nightclub after an altercation with

another gang member, which resulted in gunfire and a death. Allen testified that the

next morning, he saw Jeffrey and other members of the “Sure Shots” gang at a home

gathering guns and ammunition. Allen believed they were angry and wanted to find

the rival gang members from the nightclub shooting.

(3) On July 8, 2012, Curry and Alexander Kamara were shot and killed at

a soccer tournament in Wilmington’s Eden Park. Police suspected that “Sure Shots”

gang members, Jeffrey and Otis, were involved. One witness identified Otis as

Curry’s shooter and Jeffrey as Kamara’s shooter. Another witness saw Jeffrey and

Otis get into a gold car and saw another man approach the car and shoot the driver.

Shortly after, police found the car crashed nearby with the semi-conscious driver

bleeding and a gun on the rear seat. Police arrested Jeffrey and Otis after a brief

standoff. Jeffrey had a gunshot wound in the leg and Otis was carrying a gun and

1 Unless otherwise specified, facts are taken from this Court’s opinion in Phillips v. State, 154 A.3d 1146 (Del. 2017). 2 Allen claimed that Jeffrey was a member of the “Sure Shots” gang, had a gun given to him by the gang leader, and was a willing participant in the shootings. Prior to Jeffrey’s trial, Allen pleaded guilty to gang participation. The judge sentenced him to time served and Level III probation.

2 ammunition in his pocket. Police searched the car and found guns and a ball cap,

which contained Otis’s DNA. Carl Rone, the State’s ballistics expert, determined

that gun casings from the park were from the guns found in the car.

(4) Police charged Jeffrey with two counts of Murder in the First Degree,

Attempted Murder in the First Degree, Gang Participation, Conspiracy in the First

Degree, Reckless Endangering in the First Degree, four counts of Possession of a

Firearm During the Commission of a Felony, Riot, Conspiracy in the Second

Degree, Disorderly Conduct, two counts of Assault in the Third Degree, and

Criminal Mischief.

(5) Before trial, the Superior Court granted the State a protective order

under Superior Court Criminal Rule 16(d) that prohibited defense counsel from

disclosing to their clients, friends, family, and associates of their clients, and the

employees of counsel, any identity or statements of cooperating co-defendants. The

court granted some relief later that allowed counsel to discuss the witness

identification and statements with their staff and then full relief from the protective

order after jury selection, ten days before trial.3

(6) Jeffrey also moved to sever his trial because the State filed more

charges against Otis. The court denied the motion. During trial, Jeffrey sought again

3 State v. Phillips, 2019 WL 1110900, at *2 (Del. Super. Mar. 11, 2019) (Commissioner’s Report).

3 to sever based on antagonistic defenses because he and Otis would pursue different

cross-examination strategies. The Superior Court denied the renewed motion.

(7) One of the State’s witnesses was Carl Rone, a ballistics expert. Rone

testified that the bullet casings found at the Eden Park shooting matched the guns

found in the car that Jeffrey and Otis used to flee the scene. Years after Jeffrey’s

trial, Rone pleaded guilty to theft. Rone admitted that, during 2016-17, he falsified

records to receive additional compensation for work he did not perform.

(8) The jury convicted Jeffrey of most charges, but reduced the Attempted

First Degree Murder to Manslaughter, the Criminal Mischief charge to Disorderly

Conduct, and acquitted him of the Third Degree Assault and Second Degree

Conspiracy charges. The judge sentenced him to life plus seventy-two years in

prison. Jeffrey filed a direct appeal, where he argued, in relevant part, that the

Superior Court “denied him the right to effectively prepare for trial by granting the

State’s protective order,” and “erred in refusing to grant severance from a joint trial

with Otis.”4 This Court affirmed.5

(9) Jeffrey then filed a timely pro se motion for postconviction relief. The

court appointed counsel, who filed an Amended Motion for Postconviction Relief.

In his motion Jeffrey argued that (i) the court’s protective order rendered his counsel

4 Phillips, 154 A.3d at 1150. 5 Id.

4 ineffective because counsel could not communicate meaningfully with Jeffrey about

trial strategy until ten days before trial; (ii) his trial counsel was ineffective because

trial counsel should have handled the motions to sever differently; and (iii) he was

entitled to a hearing to determine whether, based on Rone’s guilty plea in 2018, Rone

was committing wrongdoing at the time of trial and tainted the case because his

testimony was critical.

(10) A Superior Court Commissioner issued a report and recommendation

to deny the postconviction motion,6 which the Superior Court adopted.7 The report

found that even though Jeffrey’s first two claims are couched as ineffective

assistance of counsel claims, they were effectively challenges to the Superior Court

protective order rulings and therefore barred under Superior Court Criminal Rule

61(i)(4) as previously adjudicated. Further, even if they were not barred, the

Commissioner found the ineffective assistance of counsel claims failed under

Strickland v. Washington 8 because counsel’s representation was objectively

reasonable and Jeffrey failed to show any actual prejudice. The report notes that the

trial judge instructed the jury to consider the evidence separately, and the jury’s

verdict demonstrates that they followed the instructions carefully when they

convicted him on reduced charges and acquitted on other charges. Finally, the

6 Phillips, 2019 WL 1110900. 7 Opening Br. Ex. A. 8 466 U.S. 668 (1984).

5 Commissioner dismissed Jeffrey’s claim regarding Rone’s 2016-17 criminal charges

because there was no evidence of Rone’s wrongdoing at the time of Jeffrey’s trial in

2014 and Jeffrey did not discredit the remaining trial evidence.

(11) Jeffrey appeals from the Superior Court’s decision on each claim. We

review the denial of a motion for postconviction relief for an abuse of discretion.9

We review questions of law and constitutional violations de novo.10

(12) First, we address the procedural bars in Rule 61(i) and apply the version

in effect at the time Jeffrey filed the original motion.11 A motion for postconviction

relief is barred by Rule 61(i)(1) if filed more than one year after the final conviction;

by Rule 61(i)(2) if not asserted in a prior postconviction relief motion, if applicable;

by Rule 61(i)(3) if procedurally defaulted; and by Rule 61(i)(4) if formerly

adjudicated. Rule 61(i)(5) has an exception to the first four procedural bars if the

defendant claims that the court lacked jurisdiction, pleads with particularity that new

evidence exists that strongly infers the movant’s innocence, or pleads with

particularity that a new rule of constitutional law applies and renders the conviction

invalid.

9 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996). 10 Zebroski v. State, 12 A.3d 1115, 1119 (2010). 11 Super. Ct. Crim. R. 61(i); Bradley v. State, 135 A.3d 748, 757 (Del. 2016). Jeffrey filed his motion for postconviction relief on April 10, 2017, after the current, 2017 version went into effect.

6 (13) Jeffrey’s first claim—that the trial court’s protective order ruling

rendered his counsel ineffective—can no longer be pursued if couched as a backdoor

way of challenging the substance of the court’s protective order ruling. Jeffrey

raised that issue earlier, and under Rule 61(i)(4), he cannot relitigate the same issue

in postconviction proceedings. We will, however, consider his claim that trial

counsel was ineffective under the constraints of the lawfully imposed protective

order.

(14) His second claim—that his trial counsel was ineffective because he

filed the protective order motion too late and should have raised the confusion caused

by the defendants’ identical last names—is not procedurally barred as previously

adjudicated and will be addressed later in this order.

(15) For his last claim, Jeffrey argues that he should have been permitted to

investigate the State’s ballistics expert, Rone, following his later theft conviction

because if Rone committed theft earlier and the jury knew about it at trial, then the

jury might have assessed his testimony differently. The Commissioner and Superior

Court appear to have applied Rule 61(i)(3). 12 On appeal, Jeffrey invokes Due

12 The Commissioner found that “presumably [Jeffrey] is requesting consideration of this issue either as an additional claim of ineffective assistance of counsel and/or pursuant to Rule 61(i)(3)(A)&(B).” Phillips, 2019 WL 1110900, at *6 n.46. The Commissioner also found that Rone’s conviction for filing false time sheets does not meet the “new evidence” exception because it does not create a strong inference that Jeffrey is actually innocent of the charges. Id.

7 Process rights and the “interests of justice.”13 But Rule 61(i)(3) bars “[a]ny ground

for relief that was not asserted in the proceedings leading to the judgment of

conviction” unless the movant shows cause for relief from the procedural default

and prejudice from a violation of the movant’s rights.14 Because challenging the

credibility of trial testimony properly occurs during the trial, Jeffrey’s claim is

procedurally barred unless he showed cause for relief from the procedural default

and prejudice from a violation of his rights.

(16) Turning to the substance of Jeffrey’s claims that are not procedurally

barred, counsel was constitutionally ineffective if (1) trial counsel’s representation

fell below an objective standard of reasonableness, and (2) “counsel’s actions were

prejudicial, i.e., there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the trial would be different.”15 If Jeffrey fails to

meet either prong of the test, his claim fails.16 There is a “strong presumption that

counsel’s conduct falls within the wide range” of reasonableness. 17 Further,

13 Opening Br. at 29. Jeffrey does not argue ineffective assistance of counsel or the new evidence exception. 14 Super. Ct. Crim. R. 61(i)(3)(A)–(B). 15 Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992) (citing Strickland, 466 U.S. at 668). 16 Strickland, 466 U.S. at 697. 17 Id. at 689.

8 “counsel need not advance every argument the defendant wishes to raise, regardless

of merit.”18

(17) Jeffrey argues that “it was impossible” for trial counsel to work through

the 1100 pages of witness statements while also preparing for trial within the allotted

timeframe.19 But Jeffrey does not allege that trial counsel was unprepared for trial.

And Jeffrey does not argue that effective representation would have caused trial

counsel to change trial strategy or examine witnesses differently. It was also within

the trial court’s discretion to decide whether to hold an evidentiary hearing.20

(18) Next, Jeffrey argues that timing of the motion to sever for antagonistic

defenses constituted ineffective assistance of counsel because it was “too late and []

completely foreseeable.”21 According to Jeffrey, trial counsel “should have foreseen

that Jeffrey and Otis would point the finger at each other.” 22 Jeffrey does not,

however, show how he suffered prejudice because of the alleged ineffective

representation. Prejudice requires a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”23 “A

18 Scott v. State, 7 A.3d 471 (Del. 2010) (citing Evitts v. Lucey, 469 U.S. 387, 394 (1985), reh’g denied, 470 U.S. 1065 (1985); Jones v. Barnes, 463 U.S. 745, 751 (1983)). 19 Opening Br. at 12. 20 Super. Ct. Crim. R. 61(h) (“the judge shall determine whether an evidentiary hearing is desirable”). 21 Opening Br. at 20. 22 Id. at 22. 23 Strickland, 466 U.S. at 687, 694.

9 reasonable probability is a probability sufficient to undermine confidence in the

outcome.”24 It requires more than some “conceivable effect on the outcome of the

proceeding,” but less than showing the unreasonable conduct “more likely than not

altered the outcome in the case.”25

(19) Trial counsel repeatedly moved for a mistrial and for severance, cross-

examined witnesses, and obtained curative and limiting instructions. While counsel

could have filed the motion earlier, Jeffrey does not articulate why the court might

have granted the motion if it had been filed earlier, and how an earlier filed motion

would have had a greater chance of success.

(20) Next, Jeffrey argues that counsel was ineffective for failing to

“articulate the possibility of prejudice because the defendants had the same last

name.” 26 Jeffrey argues that sharing the same last name with Otis “was very

significant,” and “in the context of a gang case, people with the same last name can

be confused or improperly ‘linked’ because there is an assumption that they are

related.”27

(21) Jeffrey concedes, however, that the jury was informed twice that the

defendants were unrelated, and the State also explained that Otis was from Guyana

24 Id. at 694. 25 Id. at 693. 26 Opening Br. at 23–24. 27 Id. at 24–25.

10 and Jeffrey was from Jamaica.28 Nothing in the record supports the theory that the

jury might have inferred they were related. The court instructed the jury to weigh

the evidence individually and render separate verdicts for each defendant, which

they did. The jury here appears to have carefully sorted out the evidence, as it

acquitted Jeffrey on some charges and reduced others. Jeffrey does not provide other

evidence that the jury failed to follow instructions or apply the law correctly.

Because Jeffrey’s claim fails the Strickland prejudice prong, it is without merit.

(22) Finally, Jeffrey argues that criminal charges filed in May 2018 against

Rone, the State’s ballistics expert, tainted his case. The Commissioner found that

Rone’s alleged misconduct occurred in 2016 and 2017, Jeffrey’s trial was held in

2014, and there is no evidence of misconduct by Rone from 2012 to 2014. The

Commissioner also found that Jeffrey’s conviction did not turn on Rone’s testimony

because there were multiple testifying eyewitnesses who identified Jeffrey as one of

the shooters. And the Commissioner looked to this Court’s affirmance of the

conviction that found “this was not a ‘close case’ and the evidence against [Jeffrey]

was ‘overwhelming.’”29 Because Jeffrey did not sufficiently discredit the remaining

evidence, the Commissioner found he did not meet his burden to justify relief. The

Superior Court agreed.

28 Phillips, 2019 WL 1110900, at *6. 29 Id. at *7 (quoting Phillips, 154 A.3d at 1154, 1161, 1163, 1164, 1166).

11 (23) On appeal, Jeffrey argues that he should have been afforded an

evidentiary hearing to expand the record to determine whether Rone’s conduct went

back to the time of Jeffrey’s trial. According to Jeffrey, Rone’s testimony was

crucial to his conviction because it linked one of the guns in a way that implicated

Jeffrey, it identified the shell casings near the scene of the crime, and the casings

were critical because no bullets were found. And because Rone’s testimony was

allegedly crucial, Jeffrey asserts that challenging his credibility could have affected

the verdict. Finally, Jeffrey argues that Rone’s fraudulent conduct is a specific act

of “untruthfulness” that may be explored under evidentiary rules, and, if Rone was

committing fraudulent activity prior to testifying, he was incentivized to agree with

the State.

(24) Jeffrey has not demonstrated an abuse of discretion by the trial court.

Under Rule 61(i)(3), Jeffrey’s claim is barred unless he shows cause for relief and

prejudice from a violation of his rights. In other words, Jeffrey must show “an

external impediment prevented him from raising the issue earlier,” and “actual

prejudice resulting from the alleged error.”30 But Jeffrey does not show that there is

an issue that should have been raised earlier—instead he seeks a hearing to determine

if an issue challenging Rone’s credibility exists. Rone’s charges included providing

30 Terrero-Ovalles v. State, 211 A.3d 1107, 2019 WL 2355019, at *2 (Del. June 3, 2019) (TABLE).

12 false timesheets during 2016 and 2017,31 and Jeffery’s trial was held in 2014. The

court did not abuse its discretion when it found no evidence of misconduct by Rone

at the time of trial because that is what Jeffrey seeks to find in a hearing. Even

assuming there is cause for relief, the court did not abuse its discretion by finding

that Jeffrey did not show actual prejudice. We are unpersuaded by Jeffrey’s

arguments for why this case “turn[ed] on Rone’s testimony” 32 because, as the

Commissioner found, there were multiple witnesses who testified about

identification and this Court found it was not a close case. Nor does Jeffrey show

that the Superior Court abused its discretion when it found that Jeffrey did not

discredit the remaining trial evidence to show prejudice. Even if Rone’s testimony

was critical, however, Jeffrey does not show that the later fraud—lying about time

sheets for undeserved payment—bears any relation to the subject of his testimony.33

Jeffrey also concedes that with the information at trial, “Rone’s credibility was

vigorously challenged, based on the dubious scientific validity of his methodology

and his lack of current credentials.”34 Last, it is within the court’s discretion to

31 Answering Br. at 23 (Rone pleaded guilty to theft by false pretense and falsifying business records in 2018.). 32 Opening Br. at 32. 33 See State v. Pierce, 2018 WL 4771787, at *4 (Del. Super. Oct. 1, 2018) (The Superior Court held an evidentiary hearing regarding Rone’s credibility and found that falsification of records seeking extra pay and falsification of documents relating to evidence logs are significantly dissimilar and are based on different motivations). 34 Phillips, 2019 WL 1110900, at *7.

13 decide whether to hold an evidentiary hearing.35 Like the Commissioner’s report

stated, “the purpose of a motion for postconviction relief is not to conduct a fishing

expedition into the possible conduct of a witness.”36 The court did not abuse its

discretion by denying an evidentiary hearing.

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

Court is AFFIRMED.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Chief Justice

35 Super. Ct. Crim. R. 61(h) (“the judge shall determine whether an evidentiary hearing is desirable”). 36 Phillips, 2019 WL 1110900, at *6.