State v. Anderson

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) Plaintiff, ) ) ) v. ) Cr. ID. No. 1705015040 ) ) KEENAN J. ANDERSON, ) ) Defendant. )

Submitted: April 16, 2021 Decided: April 23, 2021

COMMISSIONER’S REPORT AND RECOMMENDATION THAT DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED AND COUNSEL’S MOTION TO WITHDRAW AS COUNSEL SHOULD BE GRANTED .

Zachary D. Rosen, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.

Patrick J. Collins, Esquire, Wilmington, Delaware, Attorney for Keenan J. Anderson

Kennan J. Anderson, James T. Vaughn Correctional Center, Smyrna, Delaware

MAYER, Commissioner

1 This 23rd day of April, 2021, upon consideration of Defendant’s Motion for

Postconviction Relief, the Motion to Withdraw, and all related pleadings, I hereby

recommend as follows:

BACKGROUND

In May of 2017, Keenan J. Anderson (“Defendant”) was wanted on an active

warrant related to a robbery and shooting incident (the “Robbery Charges”).

Defendant was apprehended and searched. At the time of the search, police

recovered a firearm from his pants. Defendant was indicted on the Robbery Charges

as well as Possession of a Firearm by a Person Prohibited (“PFBPP”) and Carrying

a Concealed Deadly Weapon (“CCDW” and collectively with the PFBPP the

“Weapon Charges”). The Weapon Charges were severed and proceeded to trial

first.1 On January 23, 2018, Defendant was convicted of the Weapon Charges. 2

The State filed a Moton to Declare Defendant an Habitual Offender, and on

October 25, 2018, the Court granted the motion. Defendant was sentenced to the

minimum mandatory of 23 years at Level V. Defendant filed a timely appeal and

on May 14, 2019, the Delaware Supreme Court issued a Mandate and affirmed the

Superior Court Judgment.3

1 Prior to trial, the parties stipulated to the fact that Defendant was a person prohibited from possessing a firearm. D.I. # 20. 2 The jury did not find Defendant guilty of Possession of Ammunition by a Person Prohibited. 3 D.I. # 42, Case # 578, 2018. 2 On April 16, 2020, Defendant filed a Motion for Postconviction Relief and a

Motion for Appointment of Counsel.4 The Court entered an order appointing

counsel and set a briefing schedule. However, on March 23, 2021, Postconviction

Counsel filed a Motion to Withdraw with a Memorandum of Law in Support. 5

Defendant was afforded an opportunity to respond to the Motion to Withdraw and

did so by filing a Response.6 After considering the Motion to Withdraw and

Defendant’s Response, I do not believe any further briefing would assist with the

Court’s decision in this matter.

ANALYSIS OF CLAIMS

Before considering the merits of the claims, the Court must first determine

whether there are any procedural bars to the motion. 7 Defendant’s Motion was

timely filed within one year of the date of the issuance of the Supreme Court

mandate.8 Pursuant to Super. Ct. Crim. R. 61(i)(3) and (4) though, any ground for

relief that was not previously raised is deemed waived, and any claims that were

formerly adjudicated, whether in the proceedings leading to the judgment of

4 D.I. # 45, 46. 5 D.I. # 53, 54. 6 D.I. # 59. 7 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 8 Super. Ct. Crim. R. 61(m)(2) and Super. Ct. Crim. R. 61(i)(1).

3 conviction, in an appeal, in a postconviction proceeding, or in a federal habeas

corpus proceeding, are thereafter barred. However, ineffective assistance of counsel

claims cannot be raised at any earlier stage in the proceedings and are properly

presented by way of a motion for postconviction relief. 9 The fact that counsel did

not raise an argument or objection during the trial, or on appeal, does not bar a

defendant from alleging that counsel’s failure amounted to ineffective assistance. 10

In order to prevail on an ineffective assistance of counsel claim, a defendant

must show that his counsel’s representation fell below an objective standard of

reasonableness and the deficiencies in counsel’s representation caused the defendant

actual prejudice.11 When reviewing such a claim, the Court must analyze counsel’s

conduct based upon all of the facts of the case and avoid peering through the lens of

hindsight.12 Defendant must show that any alleged errors were so serious that his

counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment.13 “A defense attorney may not be faulted for a reasonable

9 Whittle v. State, 2016 WL 2585904, at *3 (Del. Apr. 28, 2016); State v. Evan-Mayes, 2016 WL 4502303, at *2 (Del. Super. Aug. 25, 2016). 10 See Malloy v. State, 2011 WL 1135107, at *2 (Del. Mar. 28, 2011); Brodie v. State, 2011 WL 927673, at *1 (Del. Super. Mar. 17, 2011); State v. Ross, 2004 WL 2735515, at *2 (Del. Super. Nov. 22, 2004). 11 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hitchens v. State, 757 A.2d 1278 (Del. 2000). 12 State v. Wright, 653 A.2d 288, 295 (Del. Super. 1994). 13 State v. Finn, 2012 WL 1980566, at *4 (Del. Super. May 23, 2012). 4 miscalculation or lack of foresight or for failing to prepare for what appear to be

remote possibilities.”14 Great weight and deference are given to tactical decisions

by the trial attorney and counsel cannot be deemed ineffective for failing to pursue

motions that lack merit.15 Further, in order to prevail on an ineffective assistance of

counsel claim, a defendant must show that but for the errors, there is a reasonable

probability that the outcome of the proceedings would have been different.16 In

doing so, Defendant must overcome a strong presumption that counsel’s conduct

was reasonably professional under the circumstances.17

Defendant’s Response presents eight (8) claims for consideration. The claims

are either procedurally barred or as noted by Postconviction Counsel, without merit.

To ensure full and fair consideration of Defendant’s claims, each will be addressed

below.

Defendant’s first and second claims argue that the prosecutor erred by failing

to call the Firearm Examiner at the time of trial and Trial Counsel erred by failing to

raise the issue of the investigation surrounding Carl Rone. These claims are

14 Id., at *4 (holding defense counsel provided active and capable advocacy when evidence against Defendant was overwhelming) (citing Harrington v. Richter, 131 S. Ct. 770, 787-792 (2011)). 15 State v. Miller, 2013 WL 871320, at *4 (Del. Super. Feb. 26, 2013). 16 Strickland, 466 U.S. at 687-88, 694; Hitchens v. State, 757 A.2d 1278 (Del. 2000). 17 State v. Wright, 653 A.2d at 293-94 (citations omitted).

5 procedurally barred because Defendant failed to present the issues during trial or on

appeal.18 To the extent Defendant intended to assert these claims as ineffective

assistance of counsel claims, they could not be presented at an earlier stage in the

proceedings and may be considered here. However, as noted by Postconviction

Counsel, Rone’s testimony and/or investigation were not relevant to Defendant’s

trial.

By letter dated January 19, 2018, the State informed Defendant that the

Firearms Examiner, Carl Rone, had been suspended and the State did not intend to

present him as a witness in the case. The State though called three law enforcement

witnesses. Detective Mullin testified that he performed the search of Defendant’s

person and removed a firearm from Defendant’s pants. Detective Mullin turned over

the gun to Detective Schupp who identified the gun presented at trial as the one

located on Defendant at the time of arrest. According to the State’s witnesses,

Defendant admitted that the gun belonged to him. The State was not required to call

Rone as a witness to meet its burden that Defendant was in possession of a firearm.

The three witnesses sufficiently supported the State’s case. Trial Counsel’s decision

not to object was reasonable because the issues surrounding Rone were not relevant

18 Super. Ct. Crim. R. 61(i)(3). 6 to the trial.19 Thus, Defendant cannot establish the first prong of his claim of

ineffective assistance of counsel in relation to Rone’s involvement.

Defendant’s third, fourth and fifth claims surround purported fingerprint and

DNA evidence. Defendant believes that the firearm was placed in a box and labeled

for fingerprint and DNA testing but neither test was conducted. Defendant therefore

believes the State withheld evidence and Trial Counsel was ineffective for not

challenging the lack of evidence. Again, these claims are procedurally barred

pursuant to Rule 61(i)(3) and will only be considered if they present a claim of

ineffective assistance of counsel. Detective Schupp testified that since the gun was

found on Defendant, the police did not go forward with fingerprint and DNA testing.

The State was not required to conduct the testing nor did it withhold evidence. 20

Trial Counsel cross-examined Detective Schupp about the testing performed and in

closing arguments highlighted the lack of DNA or fingerprint testing. Defendant

has not established that Trial Counsel’s conduct was objectively unreasonable, nor

has he provided any evidence to demonstrate that he suffered any prejudice from the

lack of evidence, i.e. that the testing, if conducted, would have weighed in his favor.

19 Although Rone’s testimony may have been relevant to the Robbery Charges, that issue is not before the Court through this motion and does not bear upon the Court determination of the validity of the Weapon Charges. 20 Postconviction Counsel correctly cites that the State is not required to present DNA or fingerprint testing. See Davis v. State, 2014 WL 3943100 (Del. Aug. 12, 2014). 7 Defendant’s sixth claim simply states, “Ineffective for not calling a witness to

the stand.” Mere allegations of ineffective assistance of counsel are insufficient. As

Defendant has failed to provide any additional details to support this claim, it should

be dismissed outright.

Defendant’s seventh claim focuses on the fact that Trial Counsel originally

objected to the admission of the weapon because of purported deficiencies in the

chain of custody, but then failed to properly cross-examine the State’s witness on

this issue. This appears to be a true ineffective assistance of counsel claim and is

therefore not prohibited by the procedural barriers. At the time of trial, Trial Counsel

objected to the admission of the gun and ammunition into evidence. 21 The Court

overruled the objection but found that the issue could properly be addressed through

cross-examination.22 However, when the opportunity arose, Trial Counsel did not

challenge the chain of custody on cross-examination. At sidebar, Trial Counsel

indicated that he did not want to violate attorney-client privilege by revealing certain

information, the answers may not be relevant, and in fact, could be prejudicial to his

client since the Robbery Charges involved a shooting incident that was pending.23

21 Motion to Withdraw Appendix at 136. 22 Id. at 137. 23 See Appendix at 139-140.

8 Trial Counsel did attempt to sway the jury by pointing out flaws in the chain of

custody during closing arguments.

The United States Supreme Court has strongly cautioned that the courts must

avoid the “distorting effects of hindsight” or grading counsel’s performance. 24

Otherwise, a defendant could too easily challenge a particular strategic choice

simply because the effort failed to garner the relief sought.25 Further, there are

“countless” ways by which counsel may defend a client, and no two advocates may

necessarily see the case the same way. As such, defense counsel has “wide latitude

in making tactical decisions” and enjoys a strong presumption that his conduct was

the result of sound trial strategy.26 “Effective representation does not require that

the Defendant prevail nor that his counsel doesn’t make mistakes.”27 The Court must

review all of the circumstances, and after applying a heavy measure of deference to

24 Ploof v. State, 75 A.3d 811, 821-825 (Del. 2013), citing Strickland, at 689-690, 687. 25 State v. Fletcher, 2015 WL 2438271, at *5 (Del. Super. May 19, 2015); State v. Gattis, 2011 WL 1458484, at *9 (Del. Super. Mar. 22, 2011) (the court must avoid judging effectiveness of trial strategy simply because the theory advanced was unsuccessful). See also, State v. Wright, 1998 WL 734771, at *8 (Del. Super. Sept. 28, 1998) (finding that although trial counsel’s strategy was risky, it was not unreasonable nor ineffective). 26 State v. Fletcher, 2015 WL 2438271, at *5, citing Harrington v. Richter, 131 S.Ct. 770, 788– 789 (2011); Thomas v. Varner, 428 F.3d 491, 498-500 (3d. 2005) (finding that once it is determined that trial counsel had an informed strategy, there is a strong presumption of effective assistance that is virtually unchallengeable). 27 State v. MacDonald, 2007 WL 1378332, at *8 (Del. Super. May 21, 2007).

9 counsel’s judgments, determine whether the decisions made were reasonable. 28 In

the present case, Defendant has not established that Trial Counsel’s strategic

decision was unreasonable. A review of the record demonstrates that Trial Counsel

was intentionally protecting Defendant from the possibility of testimony that would

implicate him not only with respect to the pending matter but other serious charges

as well. And, since Defendant has not provided any reason to believe the outcome

would have been different had the cross-examination gone forward, he has not

established ineffective assistance of counsel.

Defendant’s eighth argument challenges the selection and neutrality of certain

jurors. Defendant presented these claims on direct appeal and the Delaware Supreme

Court found that, “[t]he Superior Court was in the best position to evaluate the ability

of the three jurors to render a fair verdict. Anderson has not shown any plain error

in the Superior Court's determination that these jurors could render a fair verdict.”

As such, these claims are procedurally barred pursuant to Super. Ct. Crim. R. 61

(i)(4).

Finally, Defendant has not challenged the Court’s jurisdiction, nor has he cited

any new constitutional law or new evidence to justify an exception to the procedural

bars.29 Further, Defendant has not established cause for relief from the procedural

28 Strickland, at 691. 29 Super. Ct. Crim. R. 61(i)(4), (5) and (d)(2)(i) or (2)(ii). 10 defaults or prejudice from a violation of his rights.30 Therefore, for the reasons set

forth above, Defendant’s Motion for Postconviction Relief should be DENIED.

MOTION TO WITHDRAW AS COUNSEL

Pursuant to Superior Court Criminal Rule 61(e)(7), appointed counsel may

move to withdraw if they have considered the movant’s claims to be lacking in merit

and counsel cannot ethically advocate the claims. Counsel is required to investigate

whether there are any other substantial grounds for relief available to the movant. In

the present case, Postconviction Counsel filed a Motion to Withdraw with a

Memorandum of Law in Support, and an Appendix, citing each of Defendant’s

claims and the reasons why each claim lacks a basis for relief. Postconviction

Counsel also affirmed that they thoroughly reviewed, and discarded, the possibility

of any additional claims. I am satisfied that Postconviction Counsel made a

conscientious examination of the record and the law for claims and there are no other

claims justifying further review. 31

For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief

should be DENIED and the Motion to Withdraw should be GRANTED.

IT IS SO RECOMMENDED.

/s/ Katharine L. Mayer Commissioner Katharine L. Mayer

30 Super. Ct. Crim. R. 61(i)(3)(A), (B). 31 See State v. Coston, 2017 WL 6054944, at *2 (Del. Super. Dec. 7, 2017). 11 oc: Prothonotary Zachary D. Rosen, Deputy Attorney General Patrick J. Collins, Esquire Keenan J. Anderson (SBI 00417279)