State v. Appiah

• Court: Superior Court of Delaware
• Decided: August 30, 2023
• Docket: 1808022193
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) I.D. No. 1808022193 ) KENNETH APPIAH, ) ) Defendant, ) )

Date Submitted: May 30, 2023 Date Decided: August 28, 2023 Date Corrected: August 30, 20231

MEMORANDUM OPINION Defendant’s Motion for Postconviction Relief: DENIED Defendant’s Motion for Rule 61 Discovery: DENIED as MOOT Postconviction Counsel’s Motion to Withdraw: GRANTED

Julie M. Donoghue, Deputy Attorney General, Department of Justice, 820 N. French St., Wilmington, Delaware 19801. Attorney for the State of Delaware.

Christopher S. Koyste, Law Office of Christopher S. Kosyte LLC, 709 Brandywine Blvd., Wilmington, Delaware 19809. Attorney for Defendant.

Kenneth Appiah, pro se.

JURDEN, P.J.

1 The cover page has been corrected to reverse the order of the parties. I. INTRODUCTION Defendant Kenneth Appiah was convicted by a jury of Burglary First Degree

and related charges after he broke into his former roommate’s home, firing two

gunshots before fleeing. The Supreme Court affirmed Appiah’s convictions on

direct appeal, and he now seeks postconviction relief. For the reasons set forth

below, Appiah’s Motion for Postconviction Relief is DENIED, Appiah’s “Motion

Seeking DNA and Gunshot Residue Testing of Evidence, Rule 61 Discovery” is

DENIED as MOOT, and Postconviction Counsel’s Motion to Withdraw is

GRANTED.

II. BACKGROUND2 A. The Attempted Robbery Around 7:00 p.m. on December 13, 2017, Aruna Kanu, his girlfriend, and

their son were in their home when a man wearing a black outfit and black mask

unlocked the apartment door with a key, entered, brandished a gun, and gestured like

he was demanding money.3 Kanu went into the primary bedroom, where his

girlfriend and son were, and locked the door shut.4 The intruder fired two gunshots

through the bedroom door, hitting the son’s crib and a wall.5 Kanu’s girlfriend dialed

2 The Court has drawn the facts from the appendices attached to the briefing and the Delaware Supreme Court’s findings on direct appeal. Where appropriate, the Court will cite to specific items in the record. Items in the appendix are denominated using “A[#].” See Appiah v. State, 244 A.3d 681, 2020 WL 7625353 (Del. Dec. 22, 2020) (TABLE). 3 A145-46, A148-49. 4 A149-50. 5 A113. 2 911 and handed the phone to Kanu, who told the operator that he had been shot

several times (he had not).6 The intruder fled.

When police arrived, Kanu said that he believed the intruder was his former

roommate, but at the time could not remember the roommate’s name.7 Appiah, the

former roommate to whom Kanu was referring, rented a room from Kanu for

approximately two weeks before breaking the seven-month verbal rental agreement

with Kanu and vacating the apartment.8 After Appiah left, Kanu refused to return

his security deposit.9 So, as collateral for his security deposit, Appiah retained the

keys to the apartment.10 Appiah unsuccessfully sought police help to get his deposit

back, but they explained that the issue was a civil matter.11 Appiah then began

texting Kanu about the deposit.12 Kanu never returned it, and began renting the room

to Ricardo Campbell.13

At the scene, police collected two spent .32 caliber shell casings from outside

the bedroom door, and a projectile from the baby’s crib.14 Body-worn camera

6 A110-11, A127, A161. 7 A161, A165. Kanu eventually advised officers the intruder’s name was Appiah. See id.; see also Jury Trial Tr. 101:7-9, D.I. 65. 8 A139-140. 9 A140-143. 10 Id. 11 A126, A141. 12 A141-44. In a final October 16, 2017 text, Appiah told Kanu, “you need to stop playing with me.” A144. 13 A118, A144-45. 14 A113, A115. The other projectile was lodged in the drywall and therefore could not be recovered. A113. 3 footage from one of the responding police officers showed an officer going into

Campbell’s room and commenting that it “smel[ed] like T16.”15 That same officer

pointed out a drug scale and drug packaging.16

About forty-five minutes after the incident, officers responded to Appiah’s

residence, which was about nine miles away.17 When they arrived, Officer

Przeworski, one of the responding officers, touched the hood of Appiah’s car and

noted that it was cold.18 Twenty minutes later, Appiah, who was wearing all black

clothing, exited his apartment building and approached the officers.19 Officer

Przeworski patted down Appiah for weapons, but none were recovered.20 Appiah

claimed he had been helping his children with homework since 4:00 p.m.21 The

officers did not arrest Appiah.22 Two days later, police interviewed Appiah again.23

Appiah admitted that he owned a .32 caliber handgun (but claimed he had never

fired it) and provided a DNA sample.24 Police seized the gun for testing.25 In July

2018, the gun, the recovered shell casings, and the recovered projectile were tested.26

15 A133. 16 Id. 17 A130. 18 Id. 19 A130-A131. 20 A132. 21 A131. 22 A132. 23 A165. 24 A166, A168, A170. Appiah stated he had sole possession of the handgun. A402. 25 A166. 26 A166-A167, A181. 4 Robert Freese, an independent forensic firearms examiner who was contracted by

the Delaware State Police,27 conducted the tests and concluded the shell casings were

fired from the same gun, and were consistent with having come from Appiah’s gun.28

However, Freese could neither identify nor eliminate the projectile as having been

fired from Appiah’s gun.29 On August 31, 2018, police arrested Appiah.30

B. Trial, Post-Trial Motion, and Sentencing

A grand jury indicted Appiah for Home Invasion, Burglary First Degree, five

counts of Possession of a Firearm during the Commission of a Felony, Attempted

Robbery First Degree, three counts of Reckless Endangering First Degree, and

Criminal Mischief.31 Appiah elected to go to trial, which spanned four days – March

12, 2019, March 13, 2019, March 18, 2019, and March 19, 2019.32

On the second day of trial, Trial Counsel lodged an objection and later moved

for a mistrial, arguing she did not receive prior inconsistent statements made by

Kanu. During the State’s direct examination of Kanu, the Court called counsel to

sidebar to address its “concern about the accuracy and integrity of the record”

because it was unclear what kind of head covering Kanu was trying to describe.33

27 A171. 28 A42, A180. 29 Id. 30 D.I. 1. 31 Indict., D.I. 4. 32 D.I. 27. 33 A147. 5 During the conference, Trial Counsel stated Kanu’s testimony was inconsistent with

the discovery she received, and asked if Kanu had any pretrial meetings in which he

made similar statements.34 The State said Kanu had a meeting with a Department of

Justice social worker and the prosecutor a week or two prior to trial.35 Trial Counsel

lodged an objection that she had not been “provided with the social worker’s notes,

or the prosecutor’s notes, with these inconsistent statements,” and asked for those

materials.36 The Court instructed the State to get the notes, noting the inconsistencies

would be “great fodder” on cross-examination.37 The State resumed its direct

examination of Kanu, and Trial Counsel again objected, arguing that Kanu was

testifying inconsistently from the discovery provided to Trial Counsel.38 The Court

again stated the inconsistencies could be explored on cross-examination.39

Upon the conclusion of the State’s direct examination of Kanu, the Court

ordered the State to complete any necessary redactions to the social worker’s notes

and then provide those notes to Trial Counsel.40 After reviewing the social worker’s

notes, Trial Counsel moved for a mistrial, arguing the State violated Brady on two

34 A147. Kanu testified that the intruder pointed a gun at him and wore a “cap, disguised as a mask” that left the eyes, nose, and mouth exposed. A146. 35 A147. 36 Id. 37 Id. See also A152-53. 38 A150. Kanu stated for the first time at trial that the baby was in the crib when the shots were fired; however, that appeared to be a miscommunication because on cross-examination he testified that the baby was on the bed. A150, A163. 39 A151. 40 A152-53. 6 grounds.41 First, she argued that the notes about the head covering were inconsistent

with the discovery materials she received and the State’s opening statement referring

to it as a “mask.”42 Second, she argued that Kanu’s testimony that the gun was

pointed at his head was inconsistent with the discovery provided to her, and although

the State knew Kanu might testify to that on the stand, it did not disclose the

inconsistent information to Trial Counsel.43 Trial Counsel argued that “a big part of

[her] consultations” with Appiah regarding defense strategy centered around

whether the intruder’s face was visible and therefore sought a mistrial,44 and that had

she known Kanu would testify a gun was pointed at him, she would have introduced

contradicting body-worn camera footage where he indicates with his hands the gun

was pointing elsewhere.45

The Court denied the Motion for a Mistrial on both grounds. As to Trial

Counsel’s first argument, the Court highlighted that if the State’s opening statement

mirrored the information Trial Counsel had received, the State did not act with “ill

intent.”46 The Court found there was no prejudice because the only discrepancy was

41 See A154-55. 42 A154-55. 43 A156. 44 A155. 45 A156. 46 A154. The Court stated: The fact that you just said that [Kanu’s] statements under oath today in front of the Jury are inconsistent with what the State said the evidence would show in its opening shows me that there is no ill intent by Mr. Bloom about not producing these 7 whether the intruder’s mouth was exposed, and that could be explored on cross-

examination.47 As to Trial Counsel’s second argument, the Court held Appiah was

not prejudiced because Trial Counsel still had the opportunity to show the body-

worn camera footage on cross-examination.48 The Court allowed Trial Counsel the

lunch break to prepare for her cross-examination in light of the notes and body-worn

camera footage.49

After the lunch break, Trial Counsel requested “all of the notes of the

Department of Justice’s investigator, social worker, or Attorney General notes

regarding any interviews with any witnesses,” arguing that she only received the

social worker’s notes regarding one of Kanu’s statements.50 The Court asked the

State whether there were “any other discoverable notes that should be produced.”51

The State responded that it had produced all Brady material.52 The State told the

Court that none of the notes contained any inconsistencies with Kanu’s testimony

on the stand and therefore they were not impeachment evidence.53 The State

pretrial statements made a week or two ago because he was operating under the assumption of what he told the Jury. Id. 47 A155. 48 A156. 49 Id. 50 A157 (emphasis added). 51 A158. 52 Id. 53 Id. 8 contended that because the notes did not contradict the “key portions of the charges,”

they were not material.54 The Court ruled that there was no Brady violation.55

In all, the State introduced the following evidence to prove Appiah was the

culprit: Kanu’s testimony identifying Appiah as the intruder,56 Appiah’s admission

that he owned a .32 caliber handgun,57 Freese’s testimony as a firearms forensics

expert that the shell casings collected from the scene matched Appiah’s handgun,58

text messages between Appiah and Kanu,59 and Appiah’s key access to the

apartment.60 The defense argued Appiah was not the perpetrator.61 On March 18,

2019, Trial Counsel moved for Judgment of Acquittal, which the Court denied.62

After deliberating for approximately five hours, at 3:45 p.m. the jury submitted a

jury note stating they could not reach a unanimous decision as to whether Appiah

was the true defendant.63 The Court, the State, and Trial Counsel (who first

54 Id. 55 Id. 56 A161. 57 A166, A402. 58 A180. 59 A141-44. 60 A140-41, A145. 61 Trial Counsel Aff., D.I. 116. 62 A250-254. 63 Jury Note Tr. 2:8-14, D.I. 77. The jury advised the Court in the jury note that: Your Honor, we, the jury, cannot come to a unanimous decision to determine if Kenneth Appiah should be the true defendant in this case. We are at an 11 to 1 split. Therefore, we cannot go through the other counts without coming to a decision on this matter. Is there any guidance you can provide us on this, thank you. Id. 9 discussed it with her client) agreed an Allen charge should not be given.64 The Court

asked the jury, which was only voir dired through that day, whether additional

deliberations would be fruitful; in response, the foreperson said the jury was willing

to come back the next day.65 The Court adjourned for the day and the jury returned

the next morning to continue its deliberations.66 After the additional day of

deliberations, the jury found Appiah guilty of Burglary First Degree, five counts of

PFDCF, Aggravated Menacing (the lesser-included offense of Attempted Robbery

First Degree), three counts of Reckless Endangering First Degree, and Criminal

Mischief.67 Appiah, through Trial Counsel, filed a Motion for a New Trial, arguing

that his right to a fair trial was unfairly prejudiced because the State’s misstatements

during its closing and rebuttal arguments amounted to prosecutorial misconduct.68

The Court denied the motion, finding the challenged statements did not amount to

prosecutorial misconduct.69 On January 10, 2020, the Court sentenced Appiah to a

total of seventeen years of unsuspended Level V time.70

64 Id. at 3:2-16. 65 Id. at 9:20–10:12. 66 Id. at 13:12-17; see also A272. 67 D.I. 27. 68 Def.’s Mot. New Trial, D.I. 44. Appiah argued that the State’s conclusory assertions that the recovered shell casings “matched” Appiah’s firearm in its closing and rebuttal arguments constituted prosecutorial misconduct. In its closing argument, the State said, “officers recovered the defendant’s firearm and shell casings, and they matched,” and in its rebuttal argument said, “the firearm, the shell casings, the test-fired shell casings and shell casing recovered match.” Jury Trial Tr. 12:23–13:2, 48:11-13, D.I. 41. 69 Mem. Op. Den. Mot. New Trial, D.I. 52. 70 Appiah was sentenced, effective September 1, 2018, as follows: for Burglary First Degree, 8 years at Level V, suspended after 2 years for decreasing levels of supervision; for each count of 10 C. Direct Appeal

Appiah, through Appellate Counsel, raised two arguments on direct appeal.

First, Appiah argued that by denying Trial Counsel’s request to cross-examine

Campbell (Kanu’s roommate at the time of the incident) about the drug

paraphernalia found in his room, the Court abused its discretion and denied Appiah

his constitutional right to confrontation and a meaningful opportunity to present a

complete defense.71 Appiah alleged three claims of error relating to the denial: (1)

the evidence could have been used to show bias under D.R.E. 616; (2) the evidence

could have been used to rebut the State’s motive argument under D.R.E. 404(b); and

(3) precluding the evidence violated the Confrontation Clause and Appiah’s Due

Process right to a fair opportunity to defend against the State’s accusation.72

The Supreme Court rejected Appiah’s claims, finding that the probative value

of the evidence was outweighed by risk of confusion of the issues, undue delay, and

unfair prejudice, and therefore the Superior Court did not abuse its discretion.73 The

Supreme Court held it was “highly doubtful that the drug paraphernalia evidence

PFDCF, 3 years at Level V; for Aggravated Menacing, 5 years at Level V, suspended for 18 months at Level III; for each count of Reckless Endangerment First Degree, 5 years at Level V, suspended for 18 months at Level III; and for Criminal Mischief, a fine of $575. Corrected Sentence Order, D.I. 74. 71 Appiah, 2020 WL 7625353, at *1. 72 Id. at *2. 73 Id. at *2-3. “The Superior Court did not abuse its discretion when it weighed the speculative and marginal relevance of the evidence against the prejudice to the State of allowing cross- examination on – at best – a tangential issue.” Id. at *3. 11 would have affected the jury’s decision” because the evidence was “speculative and

minor in importance to other evidence of guilt such as the .32 caliber weapon, shell

casings, Appiah’s access to keys to the apartment, and Kanu’s identification of

Appiah as the intruder.”74 The Supreme Court further held that, assuming, arguendo

the Superior Court had erred, Appiah’s constitutional rights were not violated

because the “error” would not have affected the outcome.75

Second, Appiah argued that the Court compromised his right to self-

representation by denying his requests for new counsel or self-representation.76 The

Supreme Court held the Court did not abuse its discretion by denying Appiah’s

request for new counsel because it was not supported by good cause justifying a

continuance of the trial.77 The Supreme Court further held that Appiah’s self-

representation claim was “without merit” because he did not timely, clearly, and

unequivocally request to represent himself before trial.78

74 Id. at *4. 75 Id. 76 Id. at *4-5. 77 Id. at *4. 78 Id. at *5. The Superior Court was well within its discretion to deny the request when the same request was thoroughly considered a week before trial. Granting Appiah’s request on the second day of trial would have delayed the trial and caused prejudice to the State, trial witnesses, and the court in a trial that was fully underway. Id. 12 D. Postconviction

Because the procedural history of this postconviction matter is extensive and

convoluted given Appiah’s multiple filings and the timing of these filings, the Court

finds a chronology would be helpful before engaging in its analysis of Appiah’s

postconviction claims.

• February 5, 2021: Appiah filed a Motion for Postconviction Relief (“First

Postconviction Filing”) pro se.79 Appiah asserted five grounds for relief: (1)

ineffective assistance of Trial Counsel for not requesting an identification

instruction; (2) ineffective assistance of Trial Counsel for not requesting

discovery of all police statements, body-worn camera footage, surveillance

footage, and fingerprint and DNA analyses; (3) ineffective assistance of

Appellate Counsel for not appealing the denial of Trial Counsel’s request for

the notes from Kanu’s pretrial interviews; (4) the State’s violation of Brady/

Jencks for not producing the notes from Kanu’s pretrial interviews; and (5)

the State’s violation of Appiah’s Due Process rights for using materially

compromised ballistic evidence because of Carl Rone’s involvement.80

79 Def.’s Mot. Postconviction Relief, D.I. 80 [hereinafter First Postconviction Filing]. 80 Id. Carl Rone was the former chief firearm ballistics expert for the Delaware State Police. He was suspended, pled guilty to theft, and left the police force. Randall Chase, Ex-Police Ballistics Expert Pleads Guilty to Theft, Associated Press (Oct. 25, 2018 2:32 p.m.), https://apnews.com/b1528a48342a4dcb9962fe4f19c30428. 13 • February 10, 2021: Appiah filed a Motion for Appointment of Counsel pro

se.81

• March 11, 2021: Appiah filed an Amended Motion for Postconviction Relief

(“Second Postconviction Filing”) pro se.82 In the Second Postconviction

Filing, Appiah asserts five claims: (1) ineffective assistance of Trial Counsel

for not requesting an identification instruction and an Allen instruction; (2) the

police’s violation of Appiah’s Due Process rights by using an unduly

suggestive identification procedure that relied on an unreliable or

compromised firearm expert report that involved Carl Rone; (3) the State’s

violation of Brady/Jencks for not producing the notes from Kanu’s pretrial

interviews; (4) ineffective assistance of Appellate Counsel for not appealing

the denial of the motion requesting the notes from pretrial interviews Kanu;

and (5) ineffective assistance of Trial Counsel for not requesting incident

reports and body-worn camera footage of all officers who reported to

Appiah’s residence before Officer Przeworski arrived to check out Appiah’s

alibi.83 Aside from two small differences, the Second Postconviction Filing

mirrors the First Postconviction Filing. In the Second Postconviction Filing,

Appiah supplements the ground for relief concerning the identification

81 Def.’s Mot. Appt. Counsel, D.I. 79. 82 Def.’s Am. Mot. Postconviction Relief, D.I. 81 [hereinafter Second Postconviction Filing]. 83 Id. 14 instruction, additionally claiming that Trial Counsel was ineffective for not

requesting an Allen instruction.84 In the ground for relief concerning

discovery materials, he omits surveillance footage from his list of discovery

materials that Trial Counsel allegedly failed to request.85

• April 26, 2021: The Court issued an Order for Appointment of Counsel

pursuant to Rule 61(e)(2).86

• July 20, 2021: Christopher S. Koyste was appointed as Postconviction

Counsel (“Postconviction Counsel”).87

• June 24, 2022: Postconviction Counsel filed a Motion to Withdraw as Counsel

(“Motion to Withdraw”), asserting that following a thorough investigation of

the record, he believes Appiah’s claims are meritless and he cannot ethically

advocate for them, and no other potential meritorious postconviction claims

exist.88

• August 15, 2022: Appiah filed another Amended Motion for Postconviction

Relief (“Third Postconviction Filing”) pro se,89 and a Response to the Motion

84 Id. at 3-4. 85 Id. at 4. 86 Order Appointment Counsel, D.I. 84. See Super. Ct. Crim. R. 61(e)(2). 87 Appt. Postconviction Counsel, D.I. 88. 88 Mot. to Withdraw, D.I. 98. Postconviction Counsel attached four appendices to his Motion to Withdraw. App. Vol. I, D.I. 99; App. Vol. II, D.I. 100; App. Vol. III, D.I. 101; App. Vol. IV, D.I. 102. 89 Def.’s Am. Mot. Postconviction Relief, D.I. 108 [hereinafter Third Postconviction Filing]. 15 to Withdraw (“Fourth Postconviction Filing”).90 In the Third Postconviction

Filing, Appiah raises ten grounds for relief: (1) ineffective assistance of Trial

Counsel for not objecting to or moving to suppress Kanu’s in-court

identification of Appiah; (2) ineffective assistance of Trial Counsel for not

requesting an identification instruction;91 (3) ineffective assistance of Trial

Counsel for not requesting a Lolly/Deberry instruction; (4) ineffective

assistance of Trial Counsel for not hiring an “effective expert” to cross-

examine and/or impeach the State’s expert witness; (5) ineffective assistance

of Postconviction Counsel for not hiring an “effective” ballistics expert to aid

90 Def.’s Resp. Mot. to Withdraw, D.I. 107 [hereinafter Fourth Postconviction Filing]. Although the Fourth Postconviction Filing is styled as a response to Postconviction Counsel’s Motion to Withdraw, the Fourth Postconviction Filing simply reiterates nine of the ten grounds for relief raised in the Third Postconviction Filing, omitting only the cumulative error claim. Appiah asserts the following claims: (1) ineffective assistance of Trial Counsel for not objecting to Kanu’s in- court identification of Appiah; (2) ineffective assistance of Trial Counsel for not requesting an identification instruction; (3) ineffective assistance of Trial Counsel for not requesting a Lolly/Deberry instruction; (4) ineffective assistance of Trial Counsel for not hiring an “effective expert” who could cross-examine and/or impeach the State’s forensic firearms expert; (5) ineffective assistance of Appellate Counsel for not appealing the denial of the Motion for Judgment of Acquittal on the charge of Burglary First Degree; (6) ineffective assistance of Trial Counsel for not hiring an independent examiner to test the glove for DNA and gunpowder residue, and the swabs collected from the shell casings for potential DNA; (7) ineffective assistance of Postconviction Counsel for not hiring an independent examiner to test the glove for DNA and gunpowder residue, and the swabs collected from the shell casings for potential DNA; (8) ineffective assistance of Trial Counsel for not requesting a continuance so she could call the officer who observed drug paraphernalia in Campbell’s room; (9) ineffective assistance of Postconviction Counsel for not hiring an “effective expert” who could cross-examine and/or impeach the State’s forensic firearms expert. Appiah also requested that the Court appoint new postconviction counsel. 91 This ground for relief was contained within the claim that Trial Counsel was ineffective for not objecting to or moving to suppress Kanu’s in-court identification of Appiah, however the Court has separated the two claims for clarity. See id. at 3. 16 in Appiah’s defense;92 (6) ineffective assistance of Appellate Counsel for not

appealing the denial of the Motion for Judgment of Acquittal on the Burglary

First Degree charge; (7) ineffective assistance of Trial Counsel for not hiring

an independent examiner to test for DNA and gunpowder residue; (8)

ineffective assistance of Postconviction Counsel for not hiring an independent

examiner to test for DNA and gunpowder residue;93 (9) ineffective assistance

of Trial Counsel for not requesting a continuance to subpoena the police

officer who observed drug paraphernalia in Kanu’s apartment; and (10)

cumulative error.94

• August 18, 2022: The Court issued an Order Directing Expansion of the

Record.95 Because Appiah raises additional ineffective assistance of counsel

claims in the Third Postconviction Filing, the Court ordered Trial Counsel and

Appellate Counsel to file affidavits and any materials that respond to the

specific claims against each of them.96

92 This ground for relief was contained within the claim that Trial Counsel was ineffective for not hiring an “effective expert,” however the Court has separated the two for clarity. See id. at 17. 93 This ground for relief was contained within the claim that Trial Counsel was ineffective for not hiring an independent examiner, however the Court has separated the two for clarity. See id. at 21. 94 Id. 95 Order Directing Expansion R., D.I. 109. The Order was corrected on August 25, 2022 to fix a scrivener’s error. Corrected Order Directing Expansion R., D.I. 110. 96 Order Directing Expansion R., D.I. 109; Corrected Order Directing Expansion R., D.I. 110. 17 • December 8, 2022: Appiah filed a “Motion Seeking DNA and Gunshot

Residue Testing of Evidence, Rule 61 Discovery” (“Motion for Rule 61

Discovery”) pro se.97

• December 20, 2022: Trial Counsel filed her affidavit.98

• January 6, 2023: The Court held a teleconference to address the increasingly

convoluted record in light of Appiah’s Third and Fourth Postconviction

Filings.99 The Court stated it would construe the filings as responses to

Postconviction Counsel’s Motion to Withdraw, interpreting the responses to

mean Postconviction Counsel erred in failing to raise the additional claims.100

The State agreed the claims related back to Appiah’s first filing.101 The Court

requested that Postconviction Counsel address why he believed two of

Appiah’s newly-raised claims lacked merit in a “Response to the Court’s

Questions.”102

• January 11, 2023: Appellate Counsel filed her affidavit.103

97 Def.’s Mot. Postconviction Disc., D.I. 113. Appiah also filed a letter requesting that the Court relieve Postconviction Counsel and appoint new counsel. Def.’s Letter, D.I. 112. 98 Trial Counsel Aff., D.I. 116. 99 Teleconference Tr., D.I. 128. 100 Id. at 11:12-17. The Court stated: [R]ather than try and go back and tell him again what he needs to do, I’m just going to interpret his new filing as a response and draw from it what I can to see why he objects to your finding of no merit on the various claims. I think that’s the most expeditious way to handle this. Id. 101 Id. at 13:6-7. 102 Id. at 28:3-14. 103 Appellate Counsel Aff., D.I. 121. 18 • January 27, 2023: Postconviction Counsel filed a Response to the Court’s

Questions.104

• March 7, 2023: The Court set a Postconviction Scheduling Order.105 The

Court ordered Trial Counsel to address two of Appiah’s grounds for relief that

were not previously addressed in a supplemental affidavit.106

• March 29, 2023: Trial Counsel filed a supplemental Affidavit of Response.107

Trial Counsel addressed two grounds for relief to which she had not

previously responded.108

• April 28, 2023: The State filed its Response in Opposition to the Defendant’s

Pro Se Motions for Postconviction Relief.109

• May 30, 2023: Appiah filed his Reply Brief.110 In the Reply Brief, Appiah

reasserts an amalgamation of the above claims.111

104 Postconviction Counsel’s Resp. to Ct.’s Questions, D.I. 122. 105 Postconviction Scheduling Order, D.I. 124. 106 Id. ¶ (a). 107 Trial Counsel’s Suppl. Aff., D.I. 129. 108 Id. Trial Counsel’s supplemental affidavit addressed Appiah’s claims regarding the Allen instruction and the request for discovery material. 109 State’s Resp., D.I. 134. The State attached an Appendix to its Response. State’s Resp. App., D.I. 135. 110 Def.’s Reply Br., D.I. 137. Appiah attached an Appendix to his Reply Brief. Def.’s Reply Br. App., D.I. 138. 111 Appiah lists the following twelve claims: (1) “interest of justice requires a review of Appiah’s claims that the State violated Jencks/Brady, and Appellate Counsel was constitutionally ineffective for failing to appeal Jencks/Brady violation on direct appeal;” (2) “Appiah’s claim about the State’s out-of-court identification procedure and Mr. Rone’s involvement should be considered in the interest of justice;” (3) “Trial Counsel was constitutionally ineffective for failing to request a jury instruction on eyewitness identification and an Allen instruction;” (4) “Trial Counsel was constitutionally ineffective for failing to object to, or move to suppress Kanu’s in-court 19 III. STANDARD OF REVIEW

A defendant may move under Superior Court Criminal Rule 61 for

postconviction relief.112 Rule 61 “balance[s]” the law’s interest in conviction finality

“against . . . the important role of the courts in preventing injustice.”113 Although

the availability of collateral review reintroduces uncertainty into completed criminal

proceedings, the (“extremely rare”) possibility of undetected innocence or a

comparable miscarriage of justice overrides its disruptive effects.114

In the generic case, however, there must be a “definitive end to the litigable

aspect of the criminal process.”115 Collateral review “ensure[s] that individuals are

not imprisoned” wrongly; it is not designed to correct minor “errors of fact.”116

identification of Appiah as the intruder;” (5) “Trial Counsel was constitutionally ineffective for failing to request all police incident reports, police statements, body camera footage, surveillance footage, and fingerprint and DNA reports;” (6) “Trial Counsel was constitutionally ineffective for failing to request [a] Lolly/Deberry jury instruction;” (7) “Trial Counsel was ineffective for failing to hire an ‘effective’ expert;” (8) “Trial Counsel was ineffective for failing to hire an independent examiner to examine for DNA and gun shot residue on [] the black left-handed glove found in front of Kanu’s apartment, [] the sample swabs collected from the casings found at the crime scene, and [] Appiah’s gun;” (9) “Appellate Counsel was ineffective for failing to appeal the Motion for Judgment of Acquittal on the Burglary First Degree Charge;” (10) “Trial Counsel was ineffective for failing to seek a continuance to [sic] subpoena the officer who found evidence of drug dealing in Kanu’s apartment to testify on the evidence, as the evidence was relevant to the credibility of State’s witnesses in the form of bias and it was relevant to rebut the State’s motive theory;” (11) “Defendant is entitled to discovery in this postconviction;” (12) “Defendant is entitled to relief for cumulative error.” Def.’s Reply Br., D.I. 137. 112 Super. Ct. Crim. R. 61. 113 Zebroski v. State, 12 A.3d 1115, 1120 (Del. 2010). 114 Schlup v. Delo, 513 U.S. 298, 321 (1995). Accord Purnell v. State, 254 A.3d 1053, 1122–23 (Del. 2021). 115 Flamer v. State, 585 A.2d 736, 745 (Del. 1990). 116 Herrera v. Collins, 506 U.S. 390, 400 (1993). 20 “Calibrated to screen for the wrongfully convicted, Rule 61 should not be used to

launch post hoc strikes on issues inessential to a judgment of guilt.”117

Rule 61 does not “allow defendants unlimited opportunities to relitigate their

convictions.”118 To deter abusive collateral litigation, the standards and

presumptions “adopted” under postconviction rules purposefully have made

“winning [collateral] relief difficult[.]”119 For example, a defendant seeking to

invalidate a conviction must contend with a “presumption of regularity.”120 “The

presumption of regularity attaches to all final judgments . . . and implies those

judgments have been done rightly until contrary evidence appears.”121

Before addressing the merits of any claim for postconviction relief, the Court

must consult the four procedural bars in Rule 61(i).122 Rule 61(i)(1) provides that a

motion for postconviction relief is untimely if it is filed more than one year after a

judgment of conviction is final.123 Rule 61(i)(2) bars the consideration of successive

117 State v. Owens, 2021 WL 6058520, at *10 (Del. Super. Dec. 21, 2021). 118 Ploof v. State, 75 A.3d 811, 820 (Del. 2013). 119 Brown v. Davenport, 142 S. Ct. 1510, 1526 (2022). 120 E.g., Parke v. Raley, 506 U.S. 20, 29 (1992); accord Xenidis v. State, 2020 WL 1274624, at *2 (Del. Mar. 17, 2020). 121 Xenidis, 2020 WL 1274624, at *2. 122 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 123 Super. Ct. Crim. R. 61(i)(1). 21 motions.124 Rule 61(i)(3) bars procedurally defaulted claims.125 And Rule 61(i)(4)

bars consideration of any ground for relief formerly adjudicated in the case.126

IV. DISCUSSION As the chronology makes clear, Appiah has filed numerous pro se motions

that contain multiple claims and raise repetitive and overlapping issues.127 This,

however, is Appiah’s first time seeking postconviction relief, and the Court will

address each claim in turn.

Appiah is not procedurally barred under Rule 61(i)(1) because he first moved

for postconviction relief within a year after the judgment of conviction became

final.128 He is not procedurally barred under Rule 61(i)(2) because he has not filed

previous motions for postconviction relief. With the exception of one claim,129

Appiah’s ineffective assistance of counsel claims are not procedurally barred under

Rule 61(i)(3) or Rule 61(i)(4) because this proceeding is the first opportunity Appiah

has had to raise claims of ineffective assistance of counsel. As will be discussed

124 Id. at 61(i)(2). 125 Id. at 61(i)(3). 126 Id. at 61(i)(4). 127 First Postconviction Filing, D.I. 80; Second Postconviction Filing, D.I. 81; Third Postconviction Filing, D.I. 108; Fourth Postconviction Filing, D.I. 107; Def.’s Mot. Postconviction Disc., D.I. 113, Def.’s Reply Br., D.I. 137. 128 See Super. Ct. Crim. R. 61(i)(1). Appiah’s conviction became final when the Supreme Court of Delaware affirmed Appiah’s convictions on direct appeal in an Order dated December 22, 2020. See Appiah, 2020 WL 7625353, at *1. Appiah filed his first motion less than two months later on February 5, 2021. See First Postconviction Filing, D.I. 80. 129 Appiah’s claim that Trial Counsel was ineffective because she did not request a continuance to subpoena the police officer who observed drug paraphernalia in Kanu’s apartment fails under Rule 61(i)(4). See supra Section IV.A.1.h. 22 later in this Memorandum Opinion, however, Appiah’s Due Process claims are

procedurally barred; one under Rule 61(i)(3),130 the other under Rule 61(i)(4).131

A. Appiah’s Ineffective Assistance of Counsel Claims

Claims of ineffective assistance of counsel are governed by the Strickland v.

Washington two-prong test.132 To establish a claim of ineffective assistance of

counsel under Strickland, a defendant must show: (1) counsel’s performance fell

below an objective standard of reasonableness; and (2) prejudice, meaning that, but

for counsel’s unprofessional errors, there is a reasonable probability the result of the

proceeding would have been different.133 To establish deficient performance, the

burden is on the movant to show that counsel’s conduct fell below an objective

standard of reasonableness, “i.e., that no reasonable lawyer would have conducted

the defense as his lawyer did.”134 There is a strong presumption that counsel’s

performance was reasonable, and in particular, trial strategies and tactics made after

a thorough investigation are “virtually unchallengeable.”135 Managing defense

strategy includes “making decisions about when and whether to object, which

130 Appiah’s claim that the police’s use of an unduly suggestive identification procedure that relied on unreliable or materially compromised ballistic evidence violated his Due Process rights fails under Rule 61(i)(3). See supra Section IV.C.2. 131 Appiah’s claim that the State violated Jencks and Brady fails under Rule 61(i)(4). See supra Section IV.C.1. 132 466 U.S. 668 (1984). 133 Id. at 688, 694. 134 Green v. State, 238 A.3d 160, 174 (Del. 2020). 135 Id. (internal quotation marks omitted). 23 witnesses to call, and what defenses to develop.”136 To establish prejudice, a movant

“must make specific allegations of how defense counsel’s conduct actually

prejudiced the proceedings, rather than mere allegations of ineffectiveness.”137

Failure to prove either prong will “doom [the] claim, and the Court need not address

the other [prong].”138

1. Appiah’s Claims Against Trial Counsel a. Trial Counsel did not request an identification instruction. Appiah argues that Trial Counsel was ineffective because she failed to request

an identification instruction.139 He argues that “no reasonable trial strategy” can

explain Trial Counsel’s failure to request the instruction, “because if Kanu did

identify Appiah as the shooter it [sic] would not have taken the police eight months

to arrest Appiah.”140 Although Trial Counsel requested an alibi instruction, Appiah

argues it was not effective in this case because alibi was not the sole defense theory,

and an identification instruction would have minimized the prejudice caused by the

State’s failure to conduct a photo line-up or live line-up prior to trial.141 Appiah

136 Tucker v. State, 2017 WL 5127673, at *3 (Del. Nov. 3, 2017). 137 Alston v. State, 125 A.3d 676, 2015 WL 5297709, at *3 (Del. Sept. 4, 2015). 138 State v. Lindsey, 2023 WL 2535895, at *6 (Del. Super. Mar. 16, 2023) (citing Strickland, 466 U.S. at 697; Ploof, 75 A.3d at 825). 139 First Postconviction Filing 3-4, D.I. 80; Second Postconviction Filing 3-4, D.I. 81; Third Postconviction Filing 3-8, D.I. 108; Fourth Postconviction Filing 1-2, D.I. 107; Def.’s Reply Br. 5-7, D.I. 137. 140 Third Postconviction Filing 8, D.I. 108. 141 Fourth Postconviction Filing 2, D.I. 107. Appiah argues that, although Trial Counsel requested alibi and credibility jury instructions (which were given), the credibility instruction did not provide the jury with “meaningful guidance,” and the alibi instruction “failed to inform[] or minimized the 24 maintains there is a reasonable probability he would not have been convicted if an

identification instruction had been given because identification was a critical issue

in this case.142 In support of his argument, Appiah’s points to the fact that one juror

was struggling to determine whether Appiah was the “true defendant.”143

Jury instructions fall within trial strategy.144 If requesting a particular

instruction would be inconsistent with the defense theory, counsel’s decision not to

request such an instruction is not objectively unreasonable.145 Here, the defense

theory was that Kanu was “biased against Appiah and was always going to believe”

that the perpetrator was Appiah.146 According to Trial Counsel, the issue was not

whether Kanu misidentified Appiah, it was that someone else committed the crime

but Kanu blamed Appiah.147 Trial Counsel believed an identification instruction

would clash with the defense theory, and instead requested an alibi instruction,

which states:

The defendant has raised the defense of alibi . . . The defendant contends that, when the crime was allegedly committed, the defendant was somewhere other than the place where the crime was allegedly

impact of Kanu’s dubious in-court identification.” First Postconviction Filing 3, D.I. 80; Third Postconviction Filing 7, D.I. 108. 142 First Postconviction Filing 3-4, D.I. 80; Second Postconviction Filing 3, D.I. 81; Third Postconviction Filing 4-8, D.I. 108; Fourth Postconviction Filing 2, D.I. 107; Def.’s Reply Br. 5- 7, D.I. 137. 143 Third Postconviction Filing 7, D.I. 108. 144 State v. Dickinson, 2012 WL 3573943, at *5 (Del. Super. Aug. 17, 2012). 145 See, e.g., id. at *7; see also State v. Taylor, 2016 WL 1714142, at *7-8 (Del. Super. Apr. 26, 2016), aff’d, 150 A.3d 776, 2016 WL 6311117 (Del. Oct. 27, 2016) (TABLE). 146 Trial Counsel Aff. ¶ 1, D.I. 116. 147 Id. 25 committed. If the evidence on this defense raises a reasonable doubt about to the defendant’s guilt, you must give the defendant the benefit of that doubt and find the defendant not guilty.148

Notably, the identification instruction and the alibi instruction are similar in that they

both instruct the jury that it must be satisfied beyond a reasonable doubt that the

defendant committed the crime.149 As Postconviction Counsel noted when

investigating Appiah’s postconviction claims, Trial Counsel was “extremely

thorough in reviewing and arguing for jury instructions.”150 After her thorough

investigation, Trial Counsel reasoned that an identification instruction clashed with

the defense theory and thus opted for an alibi instruction, which is not objectively

unreasonable. Because Appiah’s claim fails on the performance prong, the Court

need not address prejudice.

148 Del. Super. P.J.I. Crim § 5.61 (2010). 149 State v. Kellum, 2010 WL 2029059, at *8 (Del. Super. May 19, 2020), aff’d, 12 A.3d 1154 (Del. 2011). See Del. Super. P.J.I. § 4.9 (2010), which states: An issue in this case is the identification of the defendant. To find the defendant guilty, you must be satisfied, beyond a reasonable doubt, that the defendant has been accurately identified, that the wrongful conduct charged in this case actually took place, and that the defendant was in fact the person who committed the act. If there is any reasonable doubt about the identification of the defendant, you must give the defendant the benefit of such doubt and find the defendant not guilty. 150 Mot. to Withdraw 26, D.I. 98. See also Trial Tr. 222:18–223:19, 224:21–226:12, D.I. 65. 26 b. Trial Counsel did not request all police statements and reports, body-worn camera footage, surveillance footage, and fingerprint and DNA analyses. Appiah claims that Trial Counsel was ineffective because she did not request

all police statements and reports, body-worn camera footage, surveillance footage,

and fingerprint and DNA analyses.151

The record belies this. Trial Counsel’s discovery request, dated September

17, 2018, requested all material discoverable under Brady v. Maryland,152 any results

or reports of scientific tests, and “[c]opies of all audio or videotapes, which may

relate to the alleged incident in this case, including but not limited to, any law

enforcement body-worn camera footage or in-camera footage.”153 The State

provided all reports and camera footage.154 Further, by requesting results or reports

151 First Postconviction Filing 3-4, D.I. 80; Second Postconviction Filing 4, D.I. 81. According to Appiah, the evidence would have confirmed his alibi and thus proven his innocence, and as such, there is a reasonable probability that the outcome of the trial would have been different if it had been requested. He also claims that by failing to request these items, Trial Counsel waived his rights to these discovery materials. He does not, however, specifically allege what information from the materials would have supported his alibi. First Postconviction Filing 3-4, D.I. 80; Second Postconviction Filing 4, D.I. 81; Def.’s Reply Br. 10-11, D.I. 137. 152 373 U.S. 83 (1963). See Wright v. State, 91 A.3d 972, 987-88 (Del. 2014) (applying Brady). Wright states: Under Brady and its progeny, the State’s failure to disclose exculpatory and impeachment evidence that is material to the case violates a defendant’s due process rights . . . . There are three components of a Brady violation: (1) evidence exists that is favorable to the accused, because it is either exculpatory or impeaching; (2) that evidence is suppressed by the State; and (3) its suppression prejudices the defendant. Id. (internal quotation marks omitted). 153 A21-A23. 154 The State provided footage from six body-worn camera videos and redacted police reports (which it is not require to provide) in its initial discovery package sent on November 15, 2018, and 27 of scientific tests and all material discoverable under Brady, any fingerprint reports

or DNA test results exculpating Appiah would have been produced if they existed,

however none did.155 Accordingly, Appiah’s claim is refuted by the record, which

shows that Trial Counsel did request such evidence, and all the evidence, that

actually exists, was produced. This claim fails the performance prong, and therefore,

the Court need not address the prejudice prong.

c. Trial Counsel did not request an Allen charge. Appiah argues that Trial Counsel was ineffective for not requesting an Allen

charge,156 but fails to explain why this purported failure was objectively

unreasonable. In conclusory fashion, he claims he was prejudiced by the “error”

because there is a reasonable probability he would not have been convicted if the

instruction had been given.157 As noted above, jury instructions fall within trial

strategy.158 When the jury is unable to agree, an Allen charge, which emphasizes the

importance of jury deliberations and encourages a verdict, may be provided.159

Under some circumstances, however, an Allen charge can have a coercive effect.160

provided footage from nineteen additional body-worn cameras on four discs on February 27, 2019. A24-25, A27, A30. 155 Trial Counsel asked the State if DNA was analyzed, but the DNA collected from Appiah was not tested. Moreover, while a latent fingerprint was found on Kanu’s apartment door, it belonged to Kanu. A71-72. 156 Second Postconviction Filing 4, D.I. 81; Def.’s Reply Br. 5-7, D.I. 137. 157 Second Postconviction Filing 4, D.I. 81; Def.’s Reply Br. 5-7, D.I. 137. 158 Dickinson, 2012 WL 3573943, at *5. 159 See Del. Super. P.J.I. § 4.40 (2010). 160 See Desmond v. State, 654 A.2d 821, 826 (Del. 1994) (explaining the factors used when determining whether an Allen charge is coercive). 28 Here, Trial Counsel was concerned that the eleven-to-one split among the jurors was

in the State’s favor, and thus an Allen charge “would allow the jury to reach a

unanimous verdict of guilt rather than remain a hung jury, requiring a new trial.”161

The Court advised the parties, “I don’t think, given the [jury] note, that an Allen

charge is a good idea,” but entertained argument on the issue.162 After consulting

with Appiah,163 Trial Counsel told the Court that the defense agreed with the Court

and argued against the Allen charge.164 Trial Counsel had sound reason for her

concern that an Allen charge would coerce the one hold-out juror, and after

consulting with Appiah, she, in her professional opinion, believed the charge was

inappropriate. Trial Counsel’s strategic decision not to request an Allen charge was

objectively reasonable. Because this claim fails the performance prong, the Court

need not consider the prejudice prong.

d. Trial Counsel did not raise an objection to Kanu’s in-court identification or move to suppress it. Appiah argues Kanu’s in-court identification of him violated his Due Process

rights because it was unreliable, and therefore, by not objecting to the identification

or moving to suppress it, Trial Counsel was ineffective.165 He states that “no

161 Trial Counsel Suppl. Aff. ¶ 1, D.I. 129. 162 Jury Note Tr. 3:2-5, D.I. 77. 163 Appiah concedes Trial Counsel conferred with him on this issue. Def.’s Reply Br. 7, D.I. 137. 164 Jury Note Tr. 3:8-14, D.I. 77. 165 Third Postconviction Filing 3-8, D.I. 108; Fourth Postconviction Filing 1-2, D.I. 107; Def.’s Reply Br. 8-9, D.I. 137. 29 reasonable trial strategy” can explain Trial Counsel’s failure to argue against the

admissibility of Kanu’s in-court identification because it would not have taken the

police eight months to arrest Appiah if Kanu could have named Appiah as the

intruder prior to the trial.166 Appiah further argues that he was prejudiced because

the outcome of the trial would have been different had Trial Counsel argued against

the identification’s admissibility, as evinced by the jury note expressing that

identification was an issue for one juror.167

Counsel is the determining authority on whether to object.168 Trial Counsel

stated there was no legal basis for her to attack the admissibility of the

identification.169 The State similarly states that “no evidentiary rule would support

an objection to Kanu’s in-court identification, nor does case law support a motion to

suppress the identification,” and the only way to challenge Kanu’s identification was

166 Third Postconviction Filing 3-8, D.I. 108; see also Fourth Postconviction Filing 8, D.I. 107. According to Appiah, because Kanu had not previously identified Appiah through a photo line-up or live line-up, Kanu, who could not remember Appiah’s name at the time of the crime, had no independent basis for the in-court identification. Third Postconviction Filing 3-8, D.I. 108; see also Fourth Postconviction Filing 2-7, D.I. 107. Appiah cites Neil v. Biggers in support of his argument that the identification was unreliable, but he misunderstands the law. See 409 U.S. 188, 199 (1972) (holding that the witness’ identification originating from a suggestive show-up was reliable under the totality of the circumstances). Biggers concerns the admissibility of an identification originating from a suggestive identification procedure, and Delaware law does not apply Biggers to initial in-court identifications. See id. at 199; see also Byrd v. State, 25 A.3d 761, 765 (Del. 2011) (holding that Biggers does not apply to in-court identifications that do not come following an impermissibly suggestive pretrial identification). 167 See Third Postconviction Filing 7, D.I. 108. 168 Cooke v. State, 977 A.2d 803, 841 (Del. 2009) (citing Wainwright v. Sykes, 433 U.S. 72, 93 (1977) (Burger, C.J. concurring)). 169 Trial Counsel Aff. ¶ 2, D.I. 116. 30 through cross-examination at trial.170 Absent an unduly suggestive pretrial

identification procedure, Due Process is not invoked because questions regarding

the reliability of a proposed in-court identification affect the weight of the

identification, not its admissibility.171 Therefore, an allegedly unreliable in-court

identification should be attacked on cross-examination.172 Trial Counsel did cross-

examine Kanu about the inconsistencies between what he told police the night of the

crime versus his in-court identification.173 Because there was not a legal basis for

suppression of, or objection to, Kanu’s in-court identification and his Due Process

rights were not at stake, Trial Counsel was objectively reasonable in highlighting the

inconsistencies in Kanu’s testimony, rather than arguing that the identification was

inadmissible. Trial Counsel’s performance was objectively reasonable; as such, the

Court need not address the prejudice prong.

e. Trial Counsel did not request a Lolly/Deberry instruction. Appiah argues that Trial Counsel was ineffective because she did not request

a Lolly/Deberry instruction for “missing evidence.”174 He claims the State (1) failed

170 State’s Resp. 32, D.I. 134. 171 Byrd, 25 A.3d at 764, 767. 172 Id. at 767. 173 Jury Trial Tr., March 13, 2019, D.I. 65 100:1–105:1. After Kanu testified that the head covering exposed more of Appiah’s face than what he described to the police the night of the crime, Trial Counsel said, “that is not what you told officers, is it?” Id. at 100:19. She then read his statement from the police report, where Kanu said he could “only see eyes and nose.” Id. at 101:22. Trial Counsel also cross-examined Kanu about his testimony that a gun was pointed at him. Id. at 102:5– 105:1. 174 Third Postconviction Filing 9-11, D.I. 108; Fourth Postconviction Filing 2-3, D.I. 107; Def.’s Reply Br. 11-13, D.I. 137. 31 to collect and preserve gunpowder residue from Appiah’s clothing and hands the

night of the crime; (2) failed to conduct DNA comparison analyses on the shell

casings collected from Kanu’s apartment and a black glove allegedly found outside

Kanu’s apartment;175 and (3) failed to perform gunpowder residue testing on

Appiah’s gun, which would show he did not fire it.176 According to Appiah, failing

to collect and test the evidence was a violation of his Due Process rights,

necessitating a Lolly/Deberry instruction.177 Rather than explain why the outcome

of trial would have been different had the instruction been given, Appiah focuses on

the fact that if the evidence had been provided, it would have exculpated him.178

If the State fails to gather or preserve physical evidence that it is has a duty to

disclose under Superior Court Criminal Rule 16179 or that falls under the scope of

Brady v. Maryland,180 the defendant may be entitled to an inference that the “missing

evidence” would have been exculpatory.181 Delaware case law does not require the

175 See Third Postconviction Filing 9, D.I. 108; Third Postconviction Filing App. 421, D.I. 108. Only Appiah addresses the black glove – it was not admitted into evidence at trial. 176 Third Postconviction Filing 9, D.I. 108; Fourth Postconviction Filing 3, D.I. 107; Def.’s Reply Br. 11-12, D.I. 137. 177 Third Postconviction Filing 11, D.I. 108; Def.’s Reply Br. 13, D.I. 137. 178 Third Postconviction Filing 11, D.I. 108. 179 Superior Court Criminal Rule 16 requires that upon the defendant’s request, the State shall permit the defendant to inspect and copy or photograph, inter alia, tangible objects and results or reports of scientific tests or experiments that are within the State’s possession, custody or control, and are either material to the preparation of the defendant’s defense or are intended for use by the state as evidence in chief at the trial, or were obtained from or belong to the defendant. Super. Ct. Crim. R. 16(a)(1)(C)-(D). 180 See supra note 151. 181 Coleman v. State, 289 A.3d 619, 626 (Del. 2023). 32 State to seek out exculpatory evidence or perform any specific testing on physical

evidence it gathers.182 As to the gunpowder residue – the State did not have a duty

to collect and preserve gunpowder residue under Rule 16 because the State did not

intend to use it in its case-in-chief,183 and the record does not show that gunpowder

residue was material to the preparation of Appiah’s defense.184 Nor did the State

have a duty to collect and preserve gunpowder residue under Brady, because the

State had no reason to believe it would have been exculpatory.185 The remainder of

Appiah’s “missing evidence” argument fails because there is no duty to test

evidence,186 therefore the State’s choice not to perform DNA testing or gunpowder

residue testing does not necessitate a Lolly/Deberry instruction. Because a

Lolly/Deberry instruction would have been inapplicable, Trial Counsel was not

182 Powell v. State, 49 A.3d 1090, 1101 (“[F]or the police to have a duty to collect and preserve specific evidence, the police must have had a reason, at that time, to believe the evidence might be exculpatory . . . . [W]e have also held that ‘the duty to preserve exculpatory evidence does not include a duty to seek out exculpatory evidence.’”) (emphasis in original) (citing Mason v. State, 963 A.2d 139 (Del. 2009)); Dennis v. State, 2013 WL 1749807, at *3 (Del. Apr. 23, 2013) (“Delaware law does not require that the State perform any specific testing on the physical evidence that it gathers.”). 183 State’s Resp. ¶ 58, D.I. 134. 184 Id. ¶ 60. “Appiah has not shown – or alleged – that the allegedly missing evidence would be ‘material’ to preparing his defense. The record does not show the ‘missing evidence’ was central to Appiah’s case, was important to establishing the elements of one of his crimes, or had an effect on the jury’s decision to convict.” Id. 185 See id. ¶¶ 58-59. 186 The State does not have a duty to test evidence, only a duty to supply reports and results of tests it actually conducts. Here, the State did not conduct DNA or gunpowder residue testing. The duty to preserve exculpatory evidence does not include a duty to seek out exculpatory evidence. Coleman, 289 A.3d at 627 (quoting Powell, 49 A.3d at 1101). 33 objectively unreasonable for not requesting it. Because Appiah has not proved the

performance prong, the Court need not analyze the prejudice prong.

f. Trial Counsel did not hire an “effective expert” to cross-examine and/or impeach the State’s ballistics expert. Appiah argues that Trial Counsel was ineffective because she did not hire an

“effective expert” to cross-examine and/or impeach the State’s ballistic expert,

Freese.187 Appiah contends that he was entitled to his own expert,188 and therefore

the failure to hire one amounted to a “complete breakdown in the adversarial

process.”189 Appiah claims that had an “effective expert” been hired, there is a

reasonable probability that the jury would have discounted Freese’s opinion.190

The decision not to hire an expert is a strategic one, and after investigation of

the facts and law, it is virtually unchallengeable.191 After reviewing the evidence,

preparing a defense, and working with her office’s in-house forensic firearms

specialist, Trial Counsel did not believe hiring an outside ballistics expert would be

187 Third Postconviction Filing 12-17, D.I. 108; Fourth Postconviction Filing 3, D.I. 107. 188 Appiah relies on State v. Gallaway, 2015 WL 4460992, at *1 (Del. Super. July 16, 2015) (holding that the indigent defendant’s trial was fundamentally unfair because he was not provided an expert to aid him in his defense). 189 Third Postconviction Filing 12-17, D.I. 108; Def.’s Reply Br. 13-16, D.I. 137. 190 Third Postconviction Filing 17, D.I. 108. 191 See Hinton v. Alabma, 571 U.S. 263, 275 (2014) (“The selection of an expert witness is a paradigmatic example of the type of ‘strategic choic[e]’ that, when made ‘after thorough investigation of [the] law and facts,’ is ‘virtually unchallengeable.’”); see also State v. Jackson, 2014 WL 4407844 at *6 (Del. Super. Sept. 3, 2014) (“To be sure, the guarantee [of] assistance of counsel subsumes a right to access to expert testimony in appropriate cases. The Sixth Amendment does not require however, and this court will not undertake, a Daubert-like inquiry to determine if an expert consulted by defense counsel was ‘qualified.’”). 34 beneficial.192 This was confirmed by Master Sergeant Vincent Consiglio, a State

Armorer at the Delaware Army National Guard, who Postconviction Counsel hired

to investigate the ballistics evidence.193 After Consiglio reviewed Freese’s reports

and testimony and examined the firearm-related discovery and trial photographs, he

reached the same conclusions as Freese.194 Trial Counsel investigated whether

hiring an outside ballistics expert would be beneficial, and made a strategic and

objectively reasonable choice not to hire one after she concluded doing so would not

be beneficial. Appiah has failed to prove that Trial Counsel’s performance in this

regard was objectively unreasonable, so the Court need not address prejudice.

g. Trial Counsel did not hire an independent examiner to test for DNA and gunpowder residue. Appiah contends that Trial Counsel was ineffective because she did not hire

an independent examiner to test the glove, the swabs collected from the shell casings,

and Appiah’s gun for DNA and gunpowder residue.195 Appiah does not explain why

this was objectively unreasonable, stating only that he was prejudiced because the

test results would have “tend[ed] to prove that someone else may have had access to

the gun without Appiah’s permission,” and therefore the outcome of the trial would

192 Trial Counsel Aff. ¶ 4, D.I. 116. 193 Mot. to Withdraw 38, D.I. 98. 194 Id. 195 Third Postconviction Filing 21-22, D.I. 108; Fourth Postconviction Filing 4, D.I. 107; Def.’s Reply Br. 17-18, D.I. 137. 35 have been different.196 Trial Counsel did not hire an independent examiner

because after her consultation with an in-house forensics specialist, she did not think

additional testing would benefit her client.197 Trial Counsel’s decision to act in the

best interests of her client was objectively reasonable. Because Appiah’s failure to

satisfy the performance prong disposes of this claim, the Court need not address

prejudice.

h. Trial Counsel did not request a continuance to subpoena the police officer who observed drug paraphernalia in Kanu’s apartment. Appiah argues Trial Counsel was ineffective because she did not request a

continuance to subpoena the police officer who observed drug paraphernalia in

Campbell’s room after the Court “prevented Appiah from introducing the drug

evidence.”198 He does not articulate how this was objectively unreasonable, but

argues the officer’s testimony was relevant to proving bias of the State’s witnesses

and undermining the credibility of the State’s motive theory.199 According to

Appiah, he was prejudiced because his constitutional rights to a complete defense

and confrontation of witnesses were violated.200

196 Third Postconviction Filing 22, D.I. 108. 197 Trial Counsel Aff. ¶ 6, D.I. 116. 198 Third Postconviction Filing 24, D.I. 108; see also Fourth Postconviction Filing 4-5, D.I. 107; Def.’s Reply Br. 20-21, D.I. 137. 199 Third Postconviction Filing 23, D.I. 108. 200 Id. at 24-25. 36 As a threshold issue, the Court must determine whether this ineffective

assistance claim is procedurally barred because although it is now framed as an

ineffective assistance of counsel claim, the underlying issue of admissibility of the

drug paraphernalia was previously adjudicated at trial and on direct appeal. The

Delaware Supreme Court has held that “the mere fact that a postconviction relief

claim might bear some resemblance to a formerly adjudicated claim” will not trigger

Rule 61(i)(4), but when there has been a prior, substantive adjudication of the

underlying error, a claim will be deemed formerly adjudicated.201 Here, the

substance of Appiah’s claim was adjudicated on the merits at trial and on appeal.

When cross-examining Campbell, Kanu’s roommate at the time of the crime, Trial

Counsel attempted to introduce the fact that drug paraphernalia was found in

Campbell’s room, but upon the State’s objection, the Court ruled that evidence was

“too far afield.”202 After the Court took a recess for the day, Trial Counsel reargued

that she should be allowed to “call in the officer who actually found those

materials.”203 The Court repeated that the drug paraphernalia evidence was too far

afield and failed under D.R.E. 403.204 Furthermore, the Due Process claim

embedded within Appiah’s ineffective assistance of counsel claim lacks merit.

201 Green, 238 A.3d at 175-76; see also State v. Jones, 2022 WL 2827004, at *6-7 (Del. Super. July 20, 2022), aff’d, Jones v. State, 294 A.3d 1079, 2023 WL 2577756 (Del. Mar. 20, 2023) (TABLE). 202 Trial Tr., Mar. 12, 2019 81:16–85:18. 203 Id. 125:15-16. 204 Id. at 126:18–130:13. 37 There is no unfettered right to present any and all evidence – the Delaware Rules of

Evidence set limits to ensure fair proceedings.205 Here, because any probative value

stemming from testimony about the drug paraphernalia was substantially

outweighed by the potential for prejudice, the Court properly denied it. On appeal,

the Supreme Court affirmed the judgment of this Court, deeming the evidence

“speculative” and of “marginal relevance.”206

Assuming, arguendo, that the claim is not procedurally barred as formerly

adjudicated, it still fails. The decision whether to call a witness is a strategic

decision.207 Given the Court’s rulings, Trial Counsel properly recognized that a

continuance request to further pursue admission of the evidence would be

unsuccessful.208 She advocated for its admission twice, and she was not objectively

unreasonable for not raising the losing argument a third time. Because this claim

fails on the performance prong, the Court need not address the prejudice prong.

2. Appiah’s Claims Against Appellate Counsel a. Appellate Counsel did not appeal the denial of Trial Counsel’s request for the Department of Justice’s notes from Kanu’s pretrial interviews. Appiah contends that Appellate Counsel was ineffective because she failed to

argue that the Superior Court abused its discretion when it allegedly denied Trial

205 D.R.E. 102. 206 Appiah, 2020 WL 7625353, at *3. 207 Sierra v. State, 242 A.3d 563, 573-74 (Del. 2020). 208 Trial Counsel Aff. ¶ 7, D.I. 116. 38 Counsel’s request for the notes from Kanu’s pretrial interviews (“the Brady

issue”)209 on appeal.210 Appiah asserts that Kanu’s out-of-court pretrial statements

were material to impeach Kanu’s credibility, making the notes Brady/Jencks

material, and therefore the Court’s denial of Trial Counsel’s request prejudiced him

because he could not effectively cross-examine Kanu.211 Appiah once again fails to

explain how Appellate Counsel’s conduct rises to the level of objectively

unreasonable conduct. He simply states there is a reasonable probability that the

outcome of the appeal would have been different.212

To be clear, the Court did not deny Trial Counsel’s request. In fact, the Court

ordered the State to provide copies of the social worker’s notes to Trial Counsel prior

to her cross-examination of Kanu,213 which the State did.214 Trial Counsel raised the

Brady issue several times,215 and the Court determined there was no Brady

violation.216 Therefore, Appiah’s argument fails as a threshold matter because it is

209 Appellate Counsel Aff. ¶¶ 13-15, D.I. 121; see also State’s Resp. ¶¶ 20-25, D.I. 134. 210 First Postconviction Filing 3-4, D.I. 80; Second Postconviction Filing 4, D.I. 81. In his Reply Brief, Appiah alters this argument, stating Appellate Counsel was ineffective because she failed to argue that by not producing the Department of Justice’s investigator notes from Kanu’s pretrial interview, the State violated Jencks/Brady. Def.’s Reply Br 1-2, D.I. 137. 211 Second Postconviction Filing 3-4, D.I. 81. Def.’s Reply Br. 1-2, D.I. 137. Jencks only concerns the witness’ own statements, not notes and summaries, and therefore is not applicable here. See, e.g., Hooks v. State, 416 A.2d 189, 200 (Del. 1980). Trial Counsel conceded this was not a Jencks issue, and regardless, the State provided all Jencks material. A158. 212 Second Postconviction Filing 4, D.I. 81; Def.’s Reply Br. 2, D.I. 137. 213 A147, A152-53. 214 A153. Any attorney work product was redacted. Id. 215 A147-48, A150-51, A154-58. 216 A154-56, A158. To the extent Appiah’s argument refers to any other Department of Justice notes, the State represented that it had produced all Brady material and none of the notes contained 39 belied by the record. Because Appiah’s claim is belied by the record, Appiah fails

to prove Appellate Counsel was objectively unreasonable.217 Accordingly, the Court

need not address the prejudice prong.

b. Appellate Counsel did not appeal the denial of the Motion for Judgment of Acquittal on the Burglary First Degree charge.

Appiah asserts that Appellate Counsel was ineffective because she failed to

argue on appeal that the Superior Court erred when it denied Trial Counsel’s Motion

for Judgment of Acquittal on the charge of Burglary First Degree.218 Appiah seems

to argue that there was insufficient evidence for a rational trier of fact to find the

essential elements of Burglary First Degree beyond a reasonable doubt.219 He fails

to explain how Appellate Counsel was objectively unreasonable and what prejudice

he suffered as a result. He merely states that his insufficiency argument was

strong.220 The conclusory nature of this claim alone ends the inquiry.

any inconsistencies contradicting the “key portions of the charges,” therefore they were not impeachment evidence. A158. 217 In her affidavit, Appellate Counsel stated that she did not believe there was prejudice; therefore, she pursued what she believed to be a stronger claim. Appellate Counsel Aff. ¶¶ 14-15, D.I. 121. Because the record belies Appiah’s claim, the Court need not address the reasonableness of Appellate Counsel’s decision, but nonetheless emphasizes that Appellate Counsel was not required to raise all possible issues on appeal, and Appiah offers no explanation as to why his proffered argument is “clearly stronger.” See Ploof, 75 A.3d at 831-32. 218 Def.’s Resp. Mot. to Withdraw 3-4, D.I. 107; Def.’s Second Am. Mot. Postconviction Relief 18, D.I. 108; Def.’s Reply Br. 19, D.I. 137. 219 Def.’s Resp. Mot. to Withdraw 3-4, D.I. 107; Def.’s Second Am. Mot. Postconviction Relief 18-21, D.I. 108. 220 Def.’s Second Am. Mot. Postconviction Relief 21, D.I. 108. 40 Assuming, arguendo, that Appiah had substantiated his claim, he fails to

prove Appellate Counsel was objectively unreasonable for waiving the argument.

Appellate Counsel believed that the insufficiency argument lacked merit, especially

in light of the standard, which is favorable to the State.221 Given this, she made a

strategic choice to forego that argument and raise arguments she believed were

stronger. This was not objectively unreasonable. Accordingly, the Court need not

address prejudice.

3. Appiah’s Claims Against Postconviction Counsel Appiah claims that Postconviction Counsel was ineffective for failing to hire

experts in his defense.222 A claim of ineffective assistance of postconviction counsel

is not viable, because there is no constitutional right to counsel in a postconviction

proceeding.223 The ineffective assistance of postconviction counsel claims fail.

221 Appellate Counsel Aff. ¶¶ 17-19, D.I. 121. See Burrell v. State, 766 A.2d 19, 24-25 (Del. 2000) (“[The Supreme] Court reviews claims of insufficient evidence to determine whether, viewing all the evidence in the light most favorable to the State, ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”). 222 Appiah argues that Postconviction Counsel was ineffective because he failed to hire an “effective expert” who could cross-examine and/or impeach the State’s ballistics expert, and because he failed to hire an independent examiner to test for DNA and gunpowder residue. Third Postconviction Filing 17, 21-22, D.I. 108; Fourth Postconviction Filing 4-5, D.I. 107. 223 Asbury v. State, 219 A.3d 994, 2019 WL 4696781, at *4 (Del. Sept. 25, 2019) (TABLE). The Court notes these claims are identical to the claims Appiah asserts against Trial Counsel, which, as discussed above, fail. 41 C. Appiah’s Due Process Claims 1. The State’s Failure to Produce All Notes from Kanu’s Pretrial Interviews Violated Jencks and Brady. Appiah claims that the State’s failure to produce all the Department of

Justice’s notes from Kanu’s pretrial interviews violated Jencks and Brady.224 This

issue was addressed at trial. After Trial Counsel objected to Kanu’s inconsistent

testimony and raised the Brady argument at sidebar, Trial Counsel was provided

with the social worker’s notes.225 After reviewing them, Trial Counsel moved for a

mistrial.226 The Court denied the motion, stating:

So you now have the inconsistent statement made at the pretrial conference. I believe Mr. Bloom . . . made a mistake. I don’t find any ill-intent, or deliberate concealment. You have the Jury. You have Mr. Kanu. You can now cross-examine. And you have not articulated how you would have done anything differently . . . . There is no basis for a mistrial here because you haven’t said anything about how you would have handled your case differently . . . . I am not finding grounds for a mistrial. You knew coming into trial that Mr. Kanu planned to testify that Mr. Appiah was the shooter. That he identified Mr. Appiah. That is no surprise. You knew from the police camera – and I am just surmising because I am at a disadvantage because I have not seen all of the evidence yet – but you knew, based on your arguments before now, that Mr. Kanu was going to say he had a gun. I understand you are claiming that this is new evidence that it was held at his head. The purpose of a trial is to find the truth. You can cross-examine the 224 First Postconviction Filing, D.I. 80; Second Postconviction Filing 3-4, D.I. 81; Def.’s Reply Br. 1-2, D.I. 137. As noted supra note 207, Jencks only concerns the witness’ own statements, not notes and summaries, and therefore is not applicable here. See Hooks, 416 A.2d at 200. Trial Counsel conceded this was not a Jencks issue, and regardless, the State provided all Jencks material. A158. 225 A153. 226 A155-56. 42 defendant about the inconsistency of that statement. But we are going to move on.227

Appiah did not raise this claim on direct appeal. Therefore, this claim is barred under

Rule 61(i)(4) because it was formerly adjudicated in the proceedings leading to

Appiah’s conviction.

2. The Police’s Use of an Unduly Suggestive Identification Procedure that Relied on Unreliable or Materially Compromised Ballistic Evidence Violated Appiah’s Due Process Rights.

Appiah argues that his Due Process rights were violated because the police

relied on an unduly suggestive procedure based on unreliable or materially

compromised ballistics evidence to identify Appiah.228 Appiah did not raise this

issue on direct appeal, and therefore it is procedurally barred under Rule 61(i)(3) as

procedurally defaulted. Appiah cannot circumvent this bar because he has not

proven cause and prejudice,229 nor has he attempted to satisfy the pleading

requirements set forth in Rule 61(d)(2)(i) or (d)(2)(ii).230

227 A154-56. 228 First Postconviction Filing 4, D.I. 80; Second Postconviction Filing 3-4, D.I. 81; Def.’s Reply Br. 3-4, D.I. 137. Appiah argues the evidence was unreliable or materially compromised by Carl Rone’s involvement, but Rone had “nothing to do with [Appiah’s] case.” A68. It appears that he further argues Rone’s alleged involvement led to Appiah’s identification, and hence constituted an unduly suggestive identification procedure, however the ballistics evidence was circumstantial evidence, not an eyewitness identification. See Goode v. State, 136 A.3d 303, 309 (Del. 2019) (explaining an unduly suggestive identification is one in which improper police conduct creates a substantial likelihood of misidentification by an eyewitness). 229 See Super. Ct. Crim. R. 61(i)(3)(A)-(B). 230 See Super. Ct. Crim. R. 61(i)(5); Super. Ct. Crim. R. 61(d)(2)(i)-(ii). 43 D. Appiah’s Cumulative Error Claim In a final effort to obtain relief, Appiah states that the “numerous errors

outlined in these claims of ineffective assistance of counsel” trigger the cumulative

error doctrine.231 A cumulative error must derive from multiple prejudicial errors.232

A cumulative review of unfounded allegations of ineffective assistance of counsel

cannot change the outcome of the analysis.233 Here, Trial and Appellate Counsel did

not commit any professional errors, and a cumulative review of their representation

likewise reveals no material defects that deprived Appiah of a substantial right or

that resulted in manifest injustice. Accordingly, Appiah’s final claim fails.

V. CONCLUSION

After reviewing the record, the briefing and evidence submitted by the parties,

and the statutory and decisional law, the Court finds that Appiah’s postconviction

claims are meritless. His ineffective assistance of counsel claims do not demonstrate

that Trial or Appellate Counsel were objectively unreasonable. His Due Process

claims are similarly meritless. Appiah has not presented any contrary evidence to

overcome the presumption of regularity. Accordingly, his Motion for

Postconviction Relief234 is DENIED. Because the Court finds Appiah’s claims

231 Third Postconviction Filing 25, D.I. 108; Def.’s Reply Br. 24-25, D.I. 137. 232 Michaels v. State, 970 A.2d 223, 231 (Del. 2009). 233 Zebroski v. State, 822 A.2d 1038, 1049 (Del. 2003), overruled on other grounds by Bass v. State, --- A.3d ---, 2023 WL 4093415 (Del. June 20, 2023). 234 This includes all filings. 44 meritless, his Motion for Rule 61 Discovery is DENIED as MOOT. Postconviction

Counsel’s Motion to Withdraw is GRANTED.

IT IS SO ORDERED.

/s/ Jan R. Jurden Jan R. Jurden, President Judge