IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE, ) ) Plaintiff, ) ) ) v. ) Cr. ID. No. 1207000397 A & B ) ) JERMAINE L. WATSON, ) ) Defendant. ) )
Submitted: June 2, 2015 Decided: September 9, 2015
COMMISSIONER’S REPORT AND RECOMMENDATION THAT DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED.
Matthew B. Frawley, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Patrick J. Collins, Esquire and Albert J. Roop, V, Esquire, 716 North Tatnall Street, Suite 300, Wilmington, Delaware, Attorneys for Defendant Jermaine Watson.
PARKER, Commissioner This 9th day of September, 2015, upon consideration of Defendant’s Motion for
Postconviction Relief, it appears to the Court that:
BACKGROUND AND PROCEDURAL HISTORY
1. On July 6, 2012, Defendant Jermaine Watson was arrested for an incident that
occurred on June 25, 2012. Defendant was subsequently indicted on a number of
charges.
2. On January 31, 2013, a Superior Court jury found Defendant guilty of Robbery
First Degree (as to Jerome Ames), two counts of Possession of a Firearm during the
Commission of a Felony (as to Jerome Ames), and Assault Second Degree (as a lesser
included offense of Assault First Degree) (as to Jerome Ames). The jury found
Defendant not guilty of Aggravated Menacing and its companion Possession of a Firearm
during the Commission of a Felony (as to Crystal Stewart).
3. During a simultaneous bench trial on the severed count of Possession of a Firearm
by a Person Prohibited, the Superior Court judge found Defendant guilty.
4. On April 12, 2013, Defendant was sentenced to a total of 20 years of unsuspended
Level V time, followed by decreasing levels of probation.
5. Defendant filed a direct appeal to the Delaware Supreme Court. On October 21,
2013, the Delaware Supreme Court affirmed the judgment of the Superior Court. 1
FACTS
6. The facts giving rise to the subject charges, as mainly set forth by the Delaware
Supreme Court in its opinion on Defendant’s direct appeal, are as follows: The evidence
presented at trial established that, on June 25, 2012, at approximately 3:00 p.m., the male
victim (Jerome Ames) was sitting with his female cousin (Crystal Stewart) on the steps of 1 Watson v. State, 2013 WL 5745708 (Del.).
1 the residence at 1023 Bennett Street, Wilmington, Delaware. An African-American man
with who neither was familiar walked past them. From about five feet away, the man
turned around, pulled out a revolver with his left hand, pointed it at the male victim and
demanded money. The victim took his money from his left pocket and gave it to the
robber. The victim then grabbed for the robber’s left wrist and the two struggled over the
gun. During the struggle, the gun fired, hitting the victim above his left knee. The robber
ran away and the victim’s cousin called 911. 2
7. The Affidavit of Probable Cause stated that after the victim was shot the assailant
“walked” southbound on Bennett Street out of sight. 3 At trial, the victim, Jerome Ames,
testified that after he was shot the assailant “walked up the street, ran up the street, like a
little jog up the street.” 4
8. The victim was taken to the Christiana Hospital Emergency Room. While in the
Emergency Room, the victim told a Wilmington police detective that the robber was a
thin, medium-skinned African-American male, 5 foot 7 or 8, with a short Afro and
wearing tan khaki shorts. The victim’s cousin gave a description of the robber to police
and stated that she could identify the man if she saw him again. Neither the victim nor
his cousin had known the Defendant prior to the robbery. 5
9. On June 29, 2012, four days after the robbery, both the victim and his cousin
identified Defendant as the robber after being shown a photographic line-up. The victim
2 Watson v. State, 2013 WL 5745708, at *1 (Del.); January 29, 2013 Trial Transcript, at pgs. 32-43.. 3 Superior Court Docket No. 47-Appendix to Defendant’s Amended Rule 61 Motion, at pg. 14. 4 January 29, 2013 Trial Transcript, at pg. 43. 5 Watson v. State, 2013 WL 5745708, at *2 (Del.).
2 and his cousin were separate and apart from each other at the time each were shown the
photographic line-up and each of them identified the Defendant as the robber. 6
10. At trial, both the victim and his cousin testified, but reluctantly. The trial had
originally been scheduled to begin on January 15, 2013, but was continued at the State’s
request when the victim failed to appear for trial. 7 A material witness warrant was issued
for the victim and the trial was rescheduled for January 29, 2013. 8
11. On January 29, 2013, at trial, the victim’s presence was secured by means of a
material witness warrant. Prior to trial, the victim told the prosecutor that he had been
intimidated. 9
12. The victim’s cousin appeared for trial with a face covering, which the judge
subsequently ordered her to remove. She told the prosecutor that she did not want the
defendant to see her face. 10
13. Neither the victim nor his cousin identified Defendant as the robber at trial.
However, the police witnesses testified that the victim and his cousin had previously
given statements describing the robber and had identified Defendant as the robber in the
photographic line-up. 11
14. Based upon that evidence, the jury found Defendant guilty of robbery, assault and
two weapon charges and found him not guilty of aggravated menacing and the associated
weapons charge. The charge of weapon possession by a person prohibited was severed
6 Watson v. State, 2013 WL 5745708, at *2 (Del.). 7 See, Superior Court Docket No. 20. 8 Superior Court Docket No. 13; January 29, 2013 Trial Transcript, at pgs. 3-4. 9 Watson v. State, 2013 WL 5745708, at *2 (Del.). 10 Watson v. State, 2013 WL 5745708, at *2 (Del.). 11 Watson v. State, 2013 WL 5745708, at *2 (Del.).
3 and, in a separate proceeding, the Superior Court judge found Defendant guilty of that
charge. 12
15. On direct appeal, Defendant claimed, inter alia, that there was insufficient
evidence introduced by the State to support his convictions. The Delaware Supreme
Court held that Defendant’s claims raised on appeal were without merit and further
concluded that, under the circumstances of this case, the record reflected that the State
introduced more than sufficient evidence to support Defendant’s convictions. 13
DEFENDANT’S RULE 61 MOTION
16. On May 8, 2014, Defendant filed a pro se motion for postconviction relief. 14
Thereafter, Defendant was assigned counsel and an Amended Motion for Postconviction
Relief was filed on February 27, 2015. In the subject motion, as amended by Rule 61
counsel, Defendant claims that trial counsel was ineffective for failing to investigate, and
as a result, failed to present alibi witnesses or evidence that Defendant had previously
been shot and was physically unable to commit the robbery at issue.
17. Before making a recommendation, the Commissioner enlarged the record by
directing Defendant’s trial counsel to submit an Affidavit responding to Defendant’s
ineffective assistance of counsel claim. Thereafter, the State filed a response to the
motion. Defendant filed a reply thereto. 15
18. In order to prevail on an ineffective assistance of counsel claim, Defendant must
meet the two-pronged Strickland test by showing that: (1) counsel performed at a level
“below an objective standard of reasonableness” and that, (2) the deficient performance
12 Watson v. State, 2013 WL 5745708, at *2 (Del.). 13 Watson v. State, 2013 WL 5745708, at *2-3 (Del.). 14 See, Superior Court Docket No. 32. 15 Super.Ct.Crim.R. 61(g)(1) and (2).
4 prejudiced the defense. 16 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. 17 When a court examines a claim of ineffective assistance of counsel, it may
address either prong first; where one prong is not met, the claim may be rejected without
contemplating the other prong. 18
19. Mere allegations of ineffectiveness will not suffice; instead, a defendant must
make and substantiate concrete allegations of actual prejudice. 19 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. 20 Moreover, there is a strong presumption that defense counsel’s conduct
constituted sound trial strategy. 21
20. 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. It 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. 22 A fair assessment of attorney performance requires that
16 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). 17 Id. 18 Strickland, 466 U.S. at 697. 19 Younger v. State, 580 A.2d 552, 556 (Del. 1990). 20 Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008). 21 Strickland v. Washington, 466 U.S. 668, 689 (1984). 22 Strickland, 466 U.S. at 688-89.
5 every effort be made to eliminate the distorting effects of hindsight. Second guessing or
“Monday morning quarterbacking” should be avoided. 23
21. The United States Supreme Court recently reiterated the high bar that must be
surmounted in establishing an ineffective assistance of counsel claim. In Harrington v.
Richter, 24 the United States Supreme Court explained that representation is
constitutionally ineffective only if it so undermined the proper functioning of the
adversarial process that the defendant was denied a fair trial. 25 The challenger’s burden
on an ineffective assistance of counsel claim is to show that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment. It is not enough to show that the errors had some conceivable effect
on the outcome of the proceeding. Counsel’s errors must be so serious as to deprive the
defendant of a fair trial. 26
22. The United States Supreme Court reasoned that it is difficult to establish an
ineffective assistance claim when counsel’s overall performance indicates active and
capable advocacy. 27 Counsel’s representation must be judged by the most deferential of
standards. The United States Supreme Court cautioned that reviewing courts must be
mindful of the fact that unlike a later reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and interacted with his client, with
opposing counsel, and with the judge. 28
23 Id. at 688-89. 24 Harrington v. Richter, 131 S.Ct. 770 (2011). 25 Id., at * 791. 26 Id. 27 Id. at 791. 28 Id. at 787-88.
6 23. Turning now to the subject case, when reviewing the entire proceeding, the record
reflects counsel’s overall performance as being active, thorough and capable advocacy.
The record reflects that defense counsel consistently and diligently defended the charges
against Defendant. Indeed, at trial, Defendant was found not guilty of the charges related
to the eyewitness, Crystal Stewart, of Aggravated Menacing and its companion
Possession of a Firearm during the Commission of a Felony.
24. With these standards as the backdrop, we turn to Defendant’s claim.
25. Defendant’s medical records reveal that on April 16, 2012, 10 weeks before the
subject incident of June 25, 2012, Defendant had suffered gunshot wounds to his left
upper extremity, right buttock and left flank. He was hospitalized on April 16, 2012 and
discharged on April 25, 2012. 29 Defendant was fitted with a colostomy bag as a result of
his gunshot wounds.
26. On June 21, 2012, Defendant went to the Emergency Room at Wilmington
Hospital complaining of abdominal pain and pain at the colostomy site. He was treated
and released that day. 30
27. On July 6, 2012, 11 days after the incident at issue, Defendant was arrested.
Following his arrest, he was evaluated at the infirmary at Howard R. Young Correctional
Institute. The intake records note that Defendant’s colostomy bag was not properly
attached. He was counseled, provided supplies and approved for and released to the
general prison population. 31 There is no indication in the medical records that
Defendant’s physical condition required any daily assistance from any caretaker or aide
while in prison.
29 Superior Court Docket No. 47- Appendix to Defendant’s Amended Rule 61 Motion, at pgs. A220-A242. 30 Superior Court Docket No. 47- Appendix to Defendant’s Amended Rule 61 Motion, at pgs. A220-A242. 31 Appendix to Defendant’s Rule 61 motion, at pgs. A240-A242.
7 28. Defendant, in his amended Rule 61 motion, contends that his trial counsel was
ineffective for failing to investigate and present exculpatory evidence as to his physical
condition on the date of the robbery. Specifically, Defendant contends that had counsel
conducted a proper investigation, he would have secured the appearance of Defendant’s
then 17 year old sister, Sharnagia Watson, at trial. Defendant’s Rule 61 counsel provided
an Affidavit from Ms. Watson that stated that she was helping Defendant recuperate from
gunshot wounds, that he had a colostomy bag, walked with difficulty and could not feed
or bathe himself, and required fulltime care. In her Affidavit, she further stated that had
she been contacted by counsel, she would have testified as to Defendant’s condition at
the time of the offense. She would have testified that Defendant could “hardly walk” or
care for himself and could not possibly have struggled with someone or ran away from an
incident. 32
29. In response to Defendant’s claim that trial counsel failed to properly investigate
and present exculpatory evidence as to Defendant’s physical condition on the date of the
robbery, Defendant’s trial counsel provided a detailed Affidavit, with supporting
documents and exhibits. 33
30. In his Affidavit, Defendant’s trial counsel explains that although he was aware
that Defendant had suffered gunshot wounds 10 weeks prior to the incident at issue,
Defendant never advised him that he had any medical condition that impaired his
physical abilities. At no point during the pendency of the case did Defendant suggest that
he was incapable of committing the offense due to being shot. 34
32 Superior Court Docket No. 47- Appendix to Defendant’s Amended Rule 61 Motion, at pgs. A243-A244. 33 See, Affidavit of Timothy J. Weiler, Superior Court Docket No. 49. 34 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49.
8 31. During the pendency of the case, as Defendant’s trial counsel was conducting his
pre-trial investigation, Defendant remained adamant in his belief that the victim and
witness would not appear for trial and Defendant would not consider any plea offer
because he did not believe that the trial would be going forward. 35 Indeed, the trial was
originally scheduled to begin on January 15, 2013, but was continued at the State’s
request when the victim failed to appear for trial. 36 A material witness warrant was
issued for the victim and the trial was rescheduled for January 29, 2013. 37
32. At trial, both the victim and his cousin testified, but reluctantly. 38 The victim’s
cousin appeared for trial with a face covering, which the judge subsequently ordered her
to remove. She told the prosecutor that she did not want the defendant to see her face. 39
Neither the victim nor his counsel identified Defendant as the robber at trial.
33. Defendant’s trial counsel explains that during the initial intake interview, on July
10, 2012, the Public Defender’s office became aware that:
* Defendant had been shot three months earlier but Defendant advised that
he had only mental health issues and seizures as a result thereof;
* Defendant was living with his Aunt, Mere Dollard, at 226 North Clayton
Street, Wilmington, Delaware 19805 and if released, he would be returning and residing
at that address; 40 and
* Defendant did not know of any witnesses who could assist the defense in
the trial. 41
35 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 16. 36 See, Superior Court Docket No. 20. 37 Superior Court Docket No. 13; January 29, 2013 Trial Transcript, at pgs. 3-4. 38 Watson v. State, 2013 WL 5745708, at *2 (Del.). 39 Watson v. State, 2013 WL 5745708, at *2 (Del.). 40 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 1. 41 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 1.
9 34. During the initial intake interview on July 10, 2012, Defendant did not advise that
he had any medical conditions that impaired his physical abilities. 42
35. On August 9, 2012, Defendant’s trial counsel conducted a videophone interview
with Defendant. Defendant never mentioned to trial counsel that he had any alibi
witnesses nor did he ever mention that that he had any medical condition that impaired
his physical abilities. 43
36. On September 19, 2012, Defendant’s trial counsel conducted another videophone
interview with Defendant. Defendant advised counsel that he was at home recuperating
from gunshot wounds at the time of the incident and that his Aunt Gia Mayo would
provide an alibi. Defendant provided the telephone number for Aunt Gia Mayo. 44
37. Following the videophone interview, Defendant’s trial counsel instructed Special
Investigator James Lane to contact Gia Mayo. 45
38. Special Investigator James Lane spoke to Defendant on September 28, 2012 to
obtain additional witness contact information. Defendant directed Mr. Lane to call
Defendant’s father, Jermane Dollard, to get the additional witness contact information. 46
39. On October 1, 2012, Special Investigator James Lane spoke with Gia Mayo. She
would not provide any information and expressed reluctance about testifying in court. 47
40. On October 1, 2012, Defendant’s trial counsel wrote Defendant a letter advising
him that Gia Mayo was refusing to be of any assistance and would not testify as an alibi
witness. 48
42 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49. 43 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 2. 44 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 3. 45 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 3. 46 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 4. 47 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 5. 48 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 6.
10 41. On November 7, 2012, Defendant’s trial counsel met personally with Defendant
at the Howard R. Young Correctional Institute. During the meeting, Defendant never
mentioned any physical problems he was experiencing on the date of the incident.
Defendant did advise counsel of alibi witnesses: Gia Mayo (Defendant’s aunt), Jermaine
Clark (Defendant’s brother age 22) and Sharnagia Watson (Defendant’s sister age 17).
Defendant provided telephone numbers to contact these witnesses. 49
42. On that same day, November 7, 2012, Defendant’s trial counsel asked Special
Investigator Lane to investigate Defendant’s three alibi witnesses. 50
43. One of the exhibits attached to Defendant’s trial counsel’s Affidavit was the e-
mail he sent to Special Investigator Lane on November 7, 2012, in which trial counsel
requested that Mr. Lane again contact Defendant’s aunt, Gia Mayo. 51 Defendant’s trial
counsel also requested that Mr. Lane contact Jermaine Clark, Defendant’s brother, and
Sharnagia Watson, Defendant’s sister, to determine if they could support an alibi defense.
Defendant’s trial counsel provided the special investigator with the telephone number
given to him by Defendant for Sharnagia Watson. 52
44. On November 8, 2012, Mr. Lane called the telephone number that Defendant
provided for Sharnagia Watson and left a voice mail message requesting that she call him
back. 53
45. On November 11, 2012, Mr. Lane called Sharnagia Watson again at the telephone
number provided by Defendant. A female answered the telephone and told him that he
had the wrong number. 54
49 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 7. 50 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 7; Exhibit D to counsel’s Affidavit. 51 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, Exhibit D. 52 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, Exhibit D. 53 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 9.
11 46. On November 11, 2012, Mr. Lane called Defendant’s father, Jermane Dollard,
and left a voice mail requesting his assistance in locating the witnesses. 55
47. On November 14, 2012, Mr. Lane advised Defendant’s trial counsel that Gia
Mayo was refusing to be of any assistance. 56 Mr. Lane further advised that he “spoke to
a female on 11-11 at the number for Sharnaigh (sic) and she informed me that the subject,
Sharnaigh, did not live there and she had no knowledge of the case.” Mr. Lane continued:
“I also tried to get in touch with a subject, Jamine Dollar (sic), who had identified himself
as our client’s father in a previous conversation. I left a message on the answering
machine . . . on 11-11 asking the subject to return my call to assist in locating the witness.
I tried the number again on 11-14 and found it was out of service. At this point I do not
have any other options. I think we have made a strong effort in locating the alleged
witnesses in this case.” 57
48. On November 14, 2012, Defendant’s trial counsel wrote a letter to Defendant
enclosing the e-mail between trial counsel and Special Investigator Lane and advising:
“Our special investigator, Mr. Lane, attempted to re-initiate contact with your alibi
witness, your aunt, Gia Mayo, and was unsuccessful; likewise with your other alibi
witness . . .” 58
49. On January 3, 2013, Defendant’s trial counsel had another videophone meeting
with Defendant and advised of the lack of contact with Gia Mayo. Defendant told counsel
that Gia Mayo was “out running the streets on drugs.” 59
54 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 10. 55 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 10. 56 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, Exhibit D. 57 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, Exhibit D. 58 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 13; Exhibit E to counsel’s Affidavit. 59 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 14.
12 50. On January 15, 2013, Mr. Lane went to 226 North Clayton Street, Wilmington,
Delaware. This was the address that Defendant provided to counsel as the residence
where he was residing. Defendant had also advised counsel that he was living with his
aunt, Mere Dollard, at this address and that if released, he would be returning to this
address to reside. 60
51. On January 15, 2013, Mr. Lane spoke to Defendant’s aunt, Amira, at this address.
She told Mr. Lane that she would contact the witnesses he was trying to reach and have
them contact him. 61
52. On January 29, 2013, the first day of trial, counsel spoke with Defendant’s family
members and they were aware that counsel was trying to locate witnesses. 62
53. On January 29, 2013, prior to the start of trial, Defendant’s trial counsel advised
the court that counsel was trying to contact alibi witnesses but was not successful in
doing so. Counsel reserved the right to call the three alibi witnesses in the hopes that
their appearance could be secured for trial. 63
54. Defendant’s father was in the courtroom during the entire trial. Defendant’s
father called Jermaine Clark, Defendant’s brother, and told him to come in and testify for
his brother. 64
55. On January 29, 2013, Defendant’s trial counsel spoke with Jermaine Clark,
Defendant’s brother. Although Defendant had advised trial counsel that his brother
would be an alibi witness, when counsel spoke to Jermaine Clark he learned that Mr.
60 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶¶ 1, 15. 61 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 15. 62 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 17. 63 January 29, 2013 Trial Transcript, Jury Selection, at pg. 11. 64 January 30, 2013 Trial Transcript, at pgs. 139-141.
13 Clark was not with his brother on the day of the incident. Mr. Clark was with the
Defendant 11 days later, on the day he was arrested. 65
56. Jermaine Clark testified at trial that his brother was right-handed. He also
testified that he never saw his brother hold a gun and did not know if his brother would
hold a gun in his left or right hand. 66
57. In order to prevail on an ineffective assistance of counsel claim, Defendant must
show that counsel performed at a level “below an objective standard of reasonableness.”
Strickland cautions that trial counsel’s performance should be reviewed from the defense
counsel’s perspective at the time decisions are being made. A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight. Second guessing or “Monday morning quarterbacking” should be avoided. 67
58. Evaluating trial counsel’s performance from counsel’s perspective at the time
decisions were being made, it is clear that trial counsel was aware that Defendant
suffered gunshot wounds 10 weeks prior to the incident at issue, but he was not advised,
nor was he aware through his interactions with Defendant, that Defendant sustained any
physical impairment resulting therefrom that would have affected his ability to commit
the robbery on the day at issue.
59. The medical records establish that Defendant was shot on April 16, 2012, but do
not suggest what Defendant’s physical ability or inability was on the date of the incident,
June 25, 2012, 10 weeks later. Eleven days after the incident, on July 6, 2012, at the time
of his arrest, Defendant was evaluated by the prison infirmary and determined to be
physically able to be placed in general prison population. Moreover, there is no
65 Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, Exhibit I. 66 January 30, 2013 Trial Transcript, at pgs. 136-139. 67 Strickland, 466 U.S. at 688-689.
14 indication in the medical records that Defendant’s physical condition required any daily
assistance from any caretaker or aide while in prison for any physical condition.
60. Defendant provided counsel with three possible alibi witnesses: Gia Mayo,
Jermaine Clark, and Sharnagia Watson. Defendant’s trial counsel, with the assistance of
a special investigator, attempted to locate these witnesses and secure their appearance for
trial. The special investigator called Gia Mayo and Sharnagia Watson at their last known
telephone numbers. A number of attempts were made to secure Gia Mayo’s assistance
but on each occasion she refused to be of assistance. Sharnagia Watson could not be
located. Calls were made to her last known telephone number. Family members were
approached to assist in locating her. The special investigator went to the address where
Defendant told counsel he was residing and requests were made to the family member at
that residence to assist in locating the witnesses. Defendant was keep appraised of
counsel’s inability to locate his alibi witnesses. Defendant directed counsel to contact to
his father to assist in locating his witnesses. Requests were made to Defendant’s father to
assist in locating Defendant’s alibi witnesses. Requests were again made at the time of
trial to the Defendant’s father as well as other family members that were in the courtroom
during the trial. In fact, Defendant’s father, who was in the courtroom during the entire
trial, contacted Defendant’s brother and told his brother to come to trial to testify.
61. In short, Gia Mayo refused to assist the defense. Jermaine Clark, Defendant’s
brother, was located and testified at trial. Defendant’s sister, Sharnagia Watson, could
not be located.
62. If Sharnagia Watson, Defendant’s sister, was as actively involved in Defendant’s
care as her Affidavit appears to suggest, it is curious that Defendant’s family members,
15 who were at trial, would not have assisted in securing her appearance at trial. Defendant’s
father and other family members were at Defendant’s trial and trial counsel requested
their assistance in helping to locate Jermaine Clark and Sharnagia Watson. Trial counsel
even reserved the right to call these witnesses at trial, in the hopes that counsel was
somehow able to secure their appearance. Yet, although Defendant’s father contacted
Jermaine Clark and told him to come to trial on his brother’s behalf, no family member
assisted in securing the appearance of Sharnagia Watson, Defendant’s sister, either before
trial or during trial.
63. It is hard to believe that Ms. Watson, if she was so involved in Defendant’s care,
and given her knowledge of his arrest, would not have spoken to her brother or any other
family member present at the trial, and would not have known about her brother’s trial
date, and would not have made the effort to reach out to her brother, or to his counsel, to
assist with her brother’s defense. This is especially so given the fact that Defendant’s
family members, including his father, were present at trial, and trial counsel asked those
family members to reach out and assist him in having Defendant’s alibi witnesses come
to court to testify at trial.
64. The standard to be employed is whether trial counsel’s investigation was
objectively reasonable judging defense counsel’s conduct at the time the decisions were
being made. Every effort should be made to eliminate the distorting effects of hindsight.
Second guessing or Monday morning quarterbacking should be avoided. Defendant’s
trial counsel made reasonable efforts to locate and contact the “alibi” witnesses provided
by Defendant. Two witnesses did not pan out, one, Gia Mayo would not be of any
assistance, and the other Jermaine Watson, could not provide an alibi defense, because he
16 was not with his brother on the date of the incident. The third witness, Sharnagia Watson
could not be located. Defendant’s trial counsel’s representation was not objectively
unreasonable and Defendant’s ineffective assistance of counsel claim must fail.
Defendant’s trial counsel did not “fail to investigate”, he did investigate the “alibi”
witnesses provided by Defendant and did attempt to secure their appearance at trial. His
efforts to locate Sharnagia Watson were reasonable.
65. It is important to emphasize that Rule 61 counsel also made an effort to secure
Defendant’s three alibi witnesses. Rule 61 counsel also retained an investigator and Rule
61 counsel spent months attempting to track down and interview witnesses to support
Defendant’s defense that he was physically unable to commit the robbery at issue. 68 Rule
61 counsel, unlike trial counsel, did not have any other pressing issues attendant with this
case. Unlike trial counsel, Rule 61 counsel did not have any other pre-trial, trial
preparation or trial considerations. Unlike trial counsel, Rule 61 counsel were able to
focus all their efforts on locating Defendant’s alibi witnesses in support of his claim
raised herein. There were no other outstanding considerations that also needed attention.
Unlike trial counsel, Rule 61 counsel did not have to focus any attention on plea
negotiations, evaluating the State’s witnesses and preparing cross-examinations,
researching legal issues, considering voir dire questions, preparing proposed jury
instructions, preparing an opening statement, considering a closing argument, nor did
Rule 61 counsel have to be concerned about the plethora of other issues attendant with
the preparation and defense of a criminal jury trial.
66. Despite all of Rule 61 counsels’ efforts, of which the focus was only on this one
issue, their investigation yielded only one witness- Sharnagia Watson. Rule 61 counsel 68 See, Rule 61 counsels’ letter to the court dated December 22, 2014, Superior Court Docket No. 42.
17 spent months on their investigation. Given the lack of any Affidavit from Gia Mayo
and/or Jermaine Clark on this issue, it is clear that both of them were unable or unwilling
to provide any assistance on this issue. Given the fact that Rule 61 counsel spent months
tracking down and interviewing “witnesses” 69 and their extensive investigation yielded
only one witness, it is clear that they were unable to locate anybody else to assist
Defendant on this issue.
67. The law requires that trial counsel perform a reasonable investigation. It does not
require that counsel employ Herculean efforts to locate any conceivable witness that may
have a bearing on the case. Here, trial counsel’s investigation was reasonable.
68. Rule 61 counsels’ months of effort yielded Sharnagia Watson, Defendant’s then
17 year old sister. In her Affidavit, Ms. Watson contends that she assisted Gia Mayo in
Defendant’s “fulltime care.” She claims that “Jermaine could hardly walk and care for
himself and could not possibly have struggled with someone or ran away from the
incident.” 70
69. Sharnagia Watson was not with the Defendant at the time of the incident. It is
therefore unclear the extent to which Ms. Watson would be of assistance to the defense at
trial. The victim testified that Defendant “walked up the street, ran up the street, like a
little jog up the street.” The victim and eyewitness testified about a “struggle” over the
gun. Since Ms. Watson was not with Defendant at the time of the incident, the value of
her proposed testimony would have to be assessed by trial counsel. The specifics of the
“struggle”, what it entailed would have to be explored as would the details of whether the
69 See, Rule 61 counsels’ letter to the court dated December 22, 2014, Superior Court Docket No. 42, wherein they request a two month extension for the filing of their amended Rule 61 motion so that their investigator can continue to locate “witnesses” since their investigator was still in the process of tracking down and interviewing “witnesses.” 70 Superior Court Docket No. 47-Appendix to Defendant’s Amended Rule 61 Motion, at pgs. A243-244.
18 assailant walked, did a “little jog” or ran. Defendant’s trial counsel would have certainly
wanted to interview Ms. Watson, assess her credibility, and the nature and extent of her
testimony.
70. Defendant’s trial counsel would have had to weigh the competing considerations
of introducing Defendant’s gunshot wounds into trial and the strength or weakness of Ms.
Watson’s testimony would have factored into that analysis. Perhaps Defendant having
suffered gunshot wounds ten weeks prior to the incident at issue would have benefited the
defense; perhaps it would have negatively impacted the defense. Defendant’s trial
counsel would have had to consider whether cross-examination of Defendant’s brother,
Jermaine Clark, on this issue would negate any benefit that may be derived from Ms.
Watson’s testimony.
71. Moreover, Defendant represented to trial counsel that he was living at 226 North
Clayton Street at the time of the incident and that if released from prison he would be
returning to that address. Ms. Watson’s Affidavit provided in support of Defendant’s
Rule 61 motion is inconsistent with Defendant’s representation in that regard. Ms.
Watson claims that both she and Defendant were residing at 408 North Broom Street, and
that she along with Gia Mayo were caring for Defendant on a “fulltime” basis. Yet, 11
days later, Defendant was arrested, evaluated by the prison infirmary, and cleared for
placement in the general population. The medical records do not reflect that Defendant
needed any aide or caretaker on a daily basis while incarcerated. Similarly, Defendant’s
brother, Jermaine Clark, who was with Defendant 11 days later, cannot support this
physical inability theory or else he would have said so- either to trial counsel or to Rule
61 counsel.
19 72. The fact of the matter remains that despite trial counsel’s reasonable efforts, he
was unable to locate Ms. Watson. Trial counsel used reasonable efforts to locate Gia
Mayo, Jermaine Clark, and Sharnagia Watson. Gia Mayo refused to be of assistance.
Jermaine Clark came to court and testified at his father’s request but was not able to
provide an alibi defense and was not then, or now, able to provide exculpatory evidence
as to Defendant’s alleged physical inability to have performed the robbery at issue.
Sharnagia Watson could not be located despite trial counsel’s, and his special
investigator’s, reasonable efforts to do so.
73. Defendant failed to establish that trial counsel’s conduct was deficient.
Defendant’s ineffective assistance of counsel claim is undermined by the record and fails
to satisfy Strickland. The conduct of defense counsel does not appear to be deficient in
any regard.
For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief
should be denied.
IT IS SO RECOMMENDED.
___________/s/_______________ Commissioner Lynne M. Parker
oc: Prothonotary cc: Timothy J. Weiler, Esquire