State v. Broomer

• Court: Superior Court of Delaware
• Decided: October 25, 2021
• Docket: 1504010863A
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) I.D. No. 1504010863A ) MICHAEL BROOMER, ) ) Defendant. )

Submitted: July 2, 2021 Decided: October 25, 2021

Upon Defendant Michael Broomer’s Amended Motion for Postconviction Relief DENIED.

MEMORANDUM OPINION AND ORDER

Maria T. Knoll, Esquire, Deputy Attorney General, Department of Justice, 820 North French Street, Wilmington, DE 19801, Attorney for the State of Delaware.

Samuel L. Guy, Esquire, P.O. Box 25464, Wilmington, DE 19899, Attorney for Defendant Michael Broomer.

WHARTON, J. 1. INTRODUCTION

This case is before the Court on Defendant Michael Broomer’s (“Broomer”)

Amended Motion for Postconviction Relief (“AMPCR”). Broomer was convicted

at trial of Murder in the Second Degree, two counts of Possession of a Firearm

During the Commission of a Felony (“PFDCF”), and one count of Reckless

Endangering in the First Degree. He appealed his convictions to the Delaware

Supreme Court. That Court affirmed the judgment of this Court in part and

remanded in part for this Court to a complete a Batson analysis. This Court, over

Boomer’s objection, completed its Batson analysis on the record as it existed at trial

without holding an evidentiary hearing or allowing additional briefing. The Court

found that that Broomer had not carried his burden of proving purposeful

discrimination. The Supreme Court affirmed that decision.

Through counsel, Broomer alleges ineffective assistance of counsel (“IAC”)

on the part of both his trial and appellate counsel. In all, he raises 21 claims. The

Court has carefully considered each one. Some are new issues, some are merely

conclusory allegations without support in the record, some are just second guessing,

and some are previously addressed issues repackaged as IAC claims, but all are

without merit. Accordingly, the AMPCR is DENIED.

2 II. FACTUAL AND PROCEDURAL BACKGROUND1

Broomer and his co-defendant, Atiba Mayfield (“Mayfield”), were both

charged with Murder in the First Degree, and various other crimes in connection

with the shooting of Raekwan Mangrum (“Mangrum”) on April 4, 2015 in

Wilmington. The homicide was witnessed, at least in part, by Wilmington Police

Officer Matthew Begany. Officer Begany heard what he thought were gunshots

while on patrol traveling west on 4th Street toward Monroe Street. He turned

southbound onto Monroe Street and observed a blue Focus at the end of an alleyway

between 2nd and 3rd Streets. He saw a man standing outside of the Focus firing a

handgun. Officer Begany called for backup and drove down the alleyway toward

the Focus and the man firing the gun. He then lost sight of the shooter as the Focus

began to head northbound towards his car and then turn suddenly onto a sidewalk

between two rows of houses. At that point, Officer Begany saw two black males in

the vehicle and broadcast the Focus’ license plate over the radio. He continued down

the alleyway and observed Mangrum, who had been shot multiple times, a woman

who had also been shot once in the leg, and her young child, who was not injured.

The woman survived, but Mangrum died the next day.

After several Wilmington Police Officers spotted the Focus, a high-speed

vehicle chase ensued involving many police officers. During the chase northbound

1 The facts are taken from Broomer v. State, Del. Supr. No. 562, 2016, Order, Vaughn, J. (Oct. 16, 2017), D.I. 53, and this Court’s Opinion on Remand, State v. Broomer, Super. Ct. No. 1506014357 (Del. Super. Ct. Nov. 14. 2017), D.I. 57. 3 on I-95, one of the officers observed a handgun being thrown from the passenger

side of the Focus. A CZ .40 caliber semi-automatic firearm was recovered in the

area where the officer saw a weapon being thrown from the Focus. A .380 Cobra

FS 380, with one spent casing and five live rounds of ammunition was also found in

along the path of the chase. Ultimately the chase ended in Pennsylvania where the

driver, Broomer, and the passenger, Mayfield, fled on foot, but quickly were taken

into custody. The police recovered a box of .380 ammunition from under the driver’s

seat of the Focus and a spent shell casing under the passenger side floor mat.

Broomer was convicted by a jury of Murder in the Second Degree, Reckless

Endangering in the First Degree and two counts of PFDCF.

Broomer raised several issues on appeal. Those issues dealt with the adequacy

of the Court’s instruction on accomplice liability, allegations of prosecutorial

misconduct in the State’s closing arguments, the admission of claimed improper lay

opinion and expert testimony, and an incomplete Batson analysis. The Supreme

Court affirmed on all but the Batson issue and remanded the case to this Court to

complete the Batson analysis while retaining jurisdiction.2

On remand, Broomer requested an evidentiary hearing followed by briefing,

while the State opposed that request and argued that the record was closed and that

the Court should complete the Batson analysis on that record. The Court denied the

Broomer’s request and determined to complete the Batson analysis on the existing

2 Broomer v. State, D.I. 53. 4 record. The Court denied the Batson challenge and returned the case to the Supreme

Court.3 There, this Court’s decision on remand was affirmed.4

On October 22, 2018, Broomer filed a pro se Motion for Postconviction

Relief,5 which was followed on March 29, 2019 by retained counsel’s AMPCR

alleging IAC.6 On May 24, 2019, trial counsel filed a joint affidavit in response to

the IAC allegations.7 On June 4, 2019 appellate counsel did the same.8 The State

answered on October 14, 2019.9 Retained postconviction counsel submitted a

Response to the State’s Answer on July 2, 2021.10

III. THE PARTIES’ CONTENTIONS

The AMPCR raises a total of 21 IAC claims against both trial and appellate

counsel. It alleges they were ineffective in that: 1) trial counsel did not challenge by

requesting a “Lolly” instruction the State’s failure to gather and preserve exculpatory

gunshot residue (“GSR”) evidence from the Focus, Mangrum, and Mangrum’s

clothing; 2) appellate counsel failed to object to the Court’s Batson analysis on

remand, and trial counsel allowed non-white and male jurors to be improperly

excluded from the jury, while allowing some jurors to be seated who should have

3 State v. Broomer, D.I. 57. 4 Broomer v. State, 2017 WL 5900084 (Del. Nov. 28, 2017). 5 Motion for Postconviction Relief, D.I. 60. 6 AMPCR, D.I. 79. 7 Trial Counsel’s Aff., D.I. 81. 8 Appellate Counsel’s Aff., D.I. 82. 9 State’s Ans., D.I. 90. 10 Def.’s Resp., D.I. 124. 5 been excluded; 3) trial counsel failed to cross-examine State’s witness Nicodemus

Morris effectively; 4) trial counsel failed to cross-examine State’s witness

Tyezghaire Stevens effectively; 5) trial counsel failed to object to improper remarks

during the prosecution’s closing argument and appellate counsel failed raise that

issue on appeal; 6) trial counsel failed to object to Morris’ testimony that a prior drug

case provided the motive to the shooting; 7) trial counsel failed to challenge the

testimony of the State’s ballistics expert Carl Rone and to retain a defense ballistics

expert; 8) trial counsel failed to call exculpatory witnesses to explain Broomer’s

presence at a shopping center near the crime scene; 9) trial counsel failed to object

to the flight instruction the Court gave; 10) trial counsel failed challenge the Court’s

accomplice liability instruction effectively; 11) trial counsel failed to object to the

Court speaking to the jury privately and off the record during deliberations and

appellate counsel failed to protect Broomer’s right to attend a teleconference the

Court conducted on remand; 12) trial counsel failed to object to the absence of a

hung jury option on the verdict sheet; 13) appellate counsel failed to pursue a Batson

evidentiary hearing on remand; 14) trial counsel incorrectly informed Broomer that

an acquittal on the conspiracy charge would result in an acquittal on all other

charges; 15) trial counsel failed to identify, investigate, and interview people present

at the scene of the shooting; 16) trial counsel failed to pursue cellphone messages

establishing a benign explanation for Broomer’s presence at the crime scene, to

question Det. Fox, the State’s chief investigating officer about those messages, and

6 to call any fact or expert witnesses on Broomer’s behalf; 17) trial counsel failed to

move for a change of venue; 18) on appeal, appellate counsel failed to question the

absence of sidebar conferences on the record; 19) appellate counsel failed to inform

Broomer of his right to appeal the Delaware Supreme Court’s decision to the United

States Supreme Court; 20) appellate counsel failed to make an argument regarding

a Chance instruction; and 21) trial counsel failed to object to Det. Fox testifying as

an expert regarding the identification of a gun from a cellphone photograph.11

The State opposes the AMPCR in its detailed point-by-point response.12 The

State argues, based on the affidavits of counsel and the trial and appellate records,

that: 1) DNA evidence would have proved nothing, the existing GSR results favored

Broomer’s theory of the case that co-defendant Mayfield unexpectedly shot

Mangrum, and no Lolly instruction was warranted because there was no reason to

believe any exculpatory evidence would have been present on the exterior of the

Focus or on Mangrum or his clothing; 2) the Batson claim is without merit because

appellate counsel did argue for a hearing on remand, the Supreme Court considered

the issue and decided it adversely to Broomer, and the record does not support other

potential Batson claims; 3) trial counsel effectively cross-examined Nicodemus

Morris; 4) trial counsel effectively cross-examined Tyezghaire Stevens; 5) appellate

counsel did raise issues of prosecutorial misconduct on appeal, but was unsuccessful;

11 AMPCR, Attach 1, D.I. 79. 12 State’s Ans., D.I. 90. 7 6) evidence of the prior drug case clearly was admissible motive evidence; 7) Carl

Rone’s arrest did not occur until after Broomer’s trial and direct appeal, his

testimony supported Broomer’s defense that Mayfield was the shooter, and,

Broomer has failed to offer any evidence that impeaches Rone’s expert opinions; 8)

trial counsel hired a private investigator who was unable to locate exculpatory

witnesses 9) the flight instruction given by the Court was appropriate; 10) the

accomplice liability instruction given by the Court was appropriate; 11) the claim

that the Court held private off the record conversations with the jury is merely

conclusory and is unsupported by the record, and Broomer fails to show that he was

prejudiced by his absence from the teleconference the Court held on remand or that

his presence was required; 12) there is no legal basis to include a hung jury option

on the verdict form; 13) appellate counsel did pursue a hearing on remand, albeit

unsuccessfully; 14) trial counsel and the verdict form itself do not support Broomer’s

recollection that he was told an acquittal on the conspiracy charge would result in an

acquittal on all charges; 15) trial counsel retained a private instructor who was unable

to locate exculpatory witnesses from the scene of the crime; 16) Broomer has failed

to substantiate his claim that the cell phones provide exculpatory evidence; 17)

Broomer’s allegation that trial counsel was ineffective in failing to move for a

change of venue is unsupported by any facts establishing juror prejudice; 18)

Broomer’s claim that trial counsel failed to question the absence of side bar

conferences is difficult to understand, but to the extent Broomer claims he was

8 prejudiced by unreported side bar conferences, the claim is unsupported by the

record; 19) even if appellate counsel had not discussed a possible appeal to the

United States Supreme Court with Broomer (which appellate counsel says he did

discuss with Broomer), he can show no prejudice because that court would not have

accepted Broomer’s case; 20) Both trial and appellate counsel raised the claim that

a Chance instruction was necessary, thus any claim that they failed to do so is

without merit; and 21) Broomer’s claim that trial counsel was ineffective in failing

to object to Det. Fox testifying as an expert is without merit because the Delaware

Supreme Court determined that Det. Fox’s testimony was proper.13

Broomer requested an opportunity to reply, which the Court granted. After

multiple extensions, Broomer submitted his Response on July 2, 2021. In the main,

the 86-page Response reiterates and amplifies the claims asserted in the AMPCR.14

IV. STANDARD AND SCOPE OF REVIEW

Before addressing the merits of a defendant’s motion for postconviction relief,

the Court must first apply the procedural bars of Superior Court Criminal Rule

61(i).15 If a procedural bar exists, then the Court will not consider the merits of the

postconviction claim.16 Under Delaware Superior Court Rules of Criminal

Procedure, a motion for postconviction relief can be barred for time limitations,

13 Id. 14 Def,’s Resp., D.I. 124. 15 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 16 Id. 9 repetitive motions, procedural defaults, and former adjudications. A motion exceeds

time limitations if it is filed more than one year after the conviction becomes final

or if it asserts a newly recognized, retroactively applied right more than one year

after it was first recognized.17 A second or subsequent motion is repetitive and

therefore barred.18 The Court considers a repetitive motion only if the movant was

convicted at trial and the motion pleads with particularity either: (1) actual

innocence;19 or (2) the application of a newly recognized, retroactively applied rule

of constitutional law rendering the conviction invalid.20 Grounds for relief “not

asserted in the proceedings leading to the judgment of conviction” are barred as

procedurally defaulted unless the movant can show “cause for relief” and “prejudice

from [the] violation.”21 Grounds for relief formerly adjudicated in the case,

including “proceedings leading to the judgment of conviction, in an appeal, in a post-

conviction proceeding, or in a federal habeas corpus hearing” are barred.22 Here, the

MPCR constitutes a timely first motion for postconviction relief, alleging IAC.

To successfully bring an ineffective assistance of counsel claim, a claimant

must demonstrate: (1) that counsel’s performance was deficient; and (2) that the

deficiencies prejudiced the claimant by depriving him or her of a fair trial with reliable

17 Super. Ct. Crim. R. 61(i)(1). 18 Super. Ct. Crim. R. 61(i)(2). 19 Super. Ct. Crim. R. 61(d)(2)(i). 20 Super. Ct. Crim. R. 61(d)(2)(ii). 21 Super. Ct. Crim. R. 61(i)(3). 22 Super. Ct. Crim. R. 61(i)(4). 10 results.23 To prove counsel’s deficiency, a defendant must show that counsel’s

representation fell below an objective standard of reasonableness.24 Moreover, a

defendant must make concrete allegations of actual prejudice and substantiate them

or risk summary dismissal.25 “[A] court must indulge in a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.”26

A successful Sixth Amendment claim of ineffective assistance of counsel requires a

showing “that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” 27 An inmate must

satisfy the proof requirements of both prongs to succeed on an ineffective assistance

of counsel claim. Failure to do so on either prong will doom the claim and the Court

need not address the other.28

In the appellate context, “[t]he [d]efendant must first show that his counsel

was objectively unreasonable in failing to find arguable issues on appeal – that is,

that counsel unreasonably failed to discover nonfrivolous issues and to file a merits

brief raising them.”29 Appellate counsel “need not (and should not) raise every

23 Strickland v. Washington, 466 U.S. 668, 688 (1984). 24 Id. at 667-68. 25 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996). 26 Strickland, 446 U.S. at 689. 27 Id. at 694. 28 Strickland, 466 U.S. at 697; Ploof v. State, 75 A.3d 811, 825 (Del. 2013) (“Strickland is a two-pronged test, and there is no need to examine whether an attorney performed deficiently if the deficiency did not prejudice the defendant.”). 29 Neal v. State, 80 A.3d 935, 946 (Del. 2013) (quoting Smith v. Robbins, 528 U.S. 259, 285 (2000)). 11 nonfrivolous claim, but rather may select from among them in order to maximize the

likelihood of success on appeal.”30 Nonetheless, it is “still possible to bring a

Strickland claim based on counsel’s failure to raise a particular claim, but it is

difficult to demonstrate that counsel was incompetent.”31 A defendant faces a

tougher burden of “showing that a particular nonfrivolous issue was clearly stronger

than issues that counsel did present” where appellate counsel filed a merits brief,

than in the case where appellate counsel filed a no merit brief.32 Further, Broomer

must still show prejudice, “That is, [the defendant] must show a reasonable

probability that, but for his counsel’s unreasonable failure [to raise a clearly stronger

issue], he would have prevailed on his appeal.”33

V. DISCUSSION

All 21 of the issues raised by the AMPCR are brought as IAC claims,

and thus, at least facially, are not barred in this first timely postconviction

relief effort. However, some of the claims allege ineffectiveness by either

appellate counsel or trial counsel in failing to raise, or raise effectively, issues

that were raised earlier. Broomer repeatedly fails to cite to specific places in

the record in support of his arguments. In many instances, he cites to

statements of witnesses or police reports that may have been produced in

30 Id. (citing Smith, 528 U.S. at 288). 31 Id. 32 Id. 33 Id. at 947 (quoting Smith, 528 U.S. 285). 12 discovery but are not part of the record of the case in this court as that record

is currently constituted. The failure to cite specifically to the record results in

many of his IAC claims being unsubstantiated. To establish prejudice, he

incants that the result would have been an acquittal, but for counsel’s

particular act of IAC. More substantiation is necessary to warrant relief. The

Court now turns to the IAC claims in the order they were raised.

A. Failure to Gather and Preserve Exculpatory Evidence and to Request Lolly Instruction (Claim 1).

Broomer alleges that trial counsel was ineffective in “fail[ing] to gather

and preserve exculpatory evidence in the car and outside of the car that should

have been tested for gunshot residue and DNA testing regarding the victim

and codefendants [sic].”34 He also argues Mangrum’s hands and clothes

should have been tested for GSR.35 Broomer contends that trial counsel

should have pursued the State’s failure to collect this evidence in his cross-

examination of Det. Fox.36 Broomer’s Response to the State’s Answer

discusses at length the potential significance of the missing GSR and DNA

evidence in establishing that Broomer was not the shooter, and alleges that the

failure to preserve that evidence was a violation of the prosecution’s

34 AMPCR, Attach. 1, at 1, D.I. 79. 35 Id. 36 Id. 13 obligation under Brady.37 The Response also invokes Lolly38 and Deberry39

in attacking the State’s failure to collect that evidence.40

Trial counsel, in their affidavit, explained the defense theory of the

case. That theory was that there was reasonable doubt that Broomer knew

that Mayfield was going to shoot Mangrum and that Broomer lacked the

requisite mental state to be convicted as an accomplice.41 Consistent with that

strategy, trial counsel did not pursue GSR testing of the exterior of the vehicle

because the existing GSR evidence supported the defense theory of the case.42

Further, DNA evidence from the car would not have produced exculpatory

results because the vehicle was in Broomer’s possession and there was no

evidence to suggest that Mangrum was near the Focus.43

Trial counsel’s strategy was sound, given the limited options the facts

presented. In fact, it proved partially successful in that Broomer was not

convicted of murder first degree. It was also the State’s theory that Broomer

was the driver and Mayfield was the shooter. Thus, additional GSR or DNA

testing from the vehicle would not have been exculpatory. It merely would

have produced cumulative evidence on an issue not in controversy. A failure

37 Brady v. Maryland, 373 U.S. 83 (1963). 38 Lolly v. State, 611 A.2d 956 (Del. 1992). 39 Deberry, v. State, 457 A.2d 744 (Del. 1983). 40 AMPCR, Attach. 1, at 1. 41. Trial Counsel’s Aff. at 4, D.I. 81. 42 Id., at 3. 43 Id. 14 to develop additional evidence on an uncontroverted issue does not meet

Strickland’s performance deficiency standard, nor does it establish prejudice.

Broomer’s arguments regarding GSR testing of Mangrum’s hands and

clothing amount to nothing more than speculation. No one testified that

Mangrum shot anybody during the incident. There was no reason for trial

counsel to pursue evidence of a theory unsupported by any witness testimony.

B. The Batson Issues (Claim 2).

The AMPCR raises several Batson-related issues and alleges IAC on

the part of both trial and appellate counsel. Those issues relate to appellate

counsel’s performance on remand, and trial counsel’s performance during

jury selection. It is, as the State suggests, an effort to relitigate the Batson

issue raised at trial as an IAC claim.

1. Appellate Counsel.

Broomer’s complaint regarding appellate counsel seems to be twofold.

First, he claims that appellate counsel was ineffective in not requesting a

hearing and objecting in writing to the procedure employed by the Court in

completing its Batson analysis on remand.44 Second, he argues that appellate

counsel failed to file any objections or request briefing in the Supreme Court

after this Court’s decision on remand.45 As to the first, Broomer simply is

44 AMPC, Attach., at 1, D.I. 79; Def.’s Resp, at 44, D.I. 124. 45 Def.’s Resp., at 45, D.I. 124. 15 wrong. Appellate counsel did request an evidentiary hearing. On remand,

“Broomer requested an evidentiary hearing followed by briefing…The Court

denied the request for a hearing and further briefing and determined to

complete the Batson analysis on the existing record.46 As to the second, had

the Supreme Court wanted additional briefing after the case was returned to

it, it would have directed additional briefing. There is no reason to believe

that Court would have looked favorably on a request to submit additional

briefs, nor has Broomer presented any argument to suggest that it would.

Broomer has failed to meet either prong of Strickland regarding appellate

counsel.

2. Trial Counsel.

Broomer challenges the effectiveness of trial counsel’s assistance in

jury selection and in advancing his Batson challenge. The Court has identified

13 separate Batson-related IAC claims against trial counsel in the AMPCR.

They are: 1) “[n]on-white and male jurors were allowed by counsel to be

excluded from being on the jury for inconsistent reasons;” 2) trial counsel

should have focused on gender balance, claiming trial counsel allowed 11

female jurors to be seated; 3) jurors who were school employees should have

been challenged because a child was at the scene of the shooting; 4) an

alternate juror who was a victim of a violent crime should have been stricken;

46 State v. Broomer, at 4, D.I. 57. 16 5) a juror who worked with Broomer’s father should have been stricken; 6)

trial counsel should have objected to the State striking jurors Clay, Riggs-

Potts, Price, and Munoz-Bonilla; 7) trial counsel should have challenged the

State’s explanation for striking certain jurors; 8) “[j]urors Lewis and Barone

were treated differently; 9) the State contradicted itself since it did not strike

jurors Gilchrest and Hearne; 10) trial counsel should have objected to the

absence of information regarding juror Goines; 11) “Allen Stokes’ statements

are missing from the jury selection transcript in connection with voir dire

without being challenged by Counsel in connection with the Batson analysis;”

12) juror Collins contaminated the jury pool with a comment about the

location of the killer as evidenced by another juror expressing nervousness;

and 13) counsel failed to obtain information and make arguments regarding

the composition of the jury pool.47

The Court makes a few observations about the jury selection process.

At the outset, jurors are given some limited information about the case,

including the charges, the date and location the offenses are alleged to have

occurred, the attorneys, the names of the potential witnesses, and the length

of the trial. Then the jurors as a group are asked a series of questions designed

to determine if a juror can be fair and impartial. Those jurors who have a

“yes” answer to any of the questions are questioned individually by the Court

47 AMPCR, Attach. 1, at 1-2, D.I. 79. 17 at sidebar with counsel, out of the presence of the other jurors. Based on the

answers to the Court’s questions, the juror either is excused or allowed to

remain on the panel from which the jury is selected. Next, twelve jurors who

have been randomly selected are seated in the jury box. Once those twelve

jurors are seated, the parties begin exercising their allotment of six peremptory

challenges each, beginning with the defense. The jury is selected when all

peremptory challenges are exhausted or both sides are content with the jury.

Alternate jurors are selected in the same fashion with each side having two

peremptory challenges when four alternates are chosen.

The Court rehearses the jury selection process because it is important

to remember how little control over jury selection trial counsel has. Counsel

has limited information about a prospective juror – the juror’s name, date of

birth, gender, marital status, education, race, occupation, employer, spouse’s

occupation, previous jury service, and law enforcement employment, plus any

additional, incidental information gleaned from individual voir dire. It is upon

this limited data set and their own visual observations of prospective jurors

that trial counsel make largely intuitive judgments about exercising and

managing peremptory challenges. The subjective nature of jury selection

establishes a high bar for postconviction counsel to overcome when seeking

to challenge as objectively unreasonable trial counsel’s prudential judgement

about retaining or striking potential jurors.

18 As noted previously, a defendant must make concrete allegations of

actual prejudice and support them or risk summary dismissal.48 Many of the

allegations fail that test. At a minimum, they are numbers 3, 4, 5, 10, 11, 12,

and 13 identified above. Other allegations in the AMPCR – numbers 1, and

6-9 – relate to claims more fully discussed in Broomer’s Response to the

State’s Answer. There is no reason to believe that jurors who work in schools

would be unable to be fair and impartial merely because a child was present

at the scene (number 3). The alternate juror who was the victim of a violent

crime did not participate in deliberations (number 4). During trial, a juror

recognized someone from work in the gallery and exchanged pleasantries with

him outside of court. The juror was unaware the person was Broomer’s

stepfather.49 When questioned by the Court, the juror stated she could remain

fair and impartial.50 Broomer does not explain how this juror remaining on

the jury prejudiced him (number 5). Broomer does not specify what

information is absent regarding juror Goines, or how any such absence

prejudiced him (number 10). Allen Stokes, a black male, was seated as a juror.

Broomer does not identify what statements made by Stokes are missing from

the transcript or how the missing statements prejudiced him. It appears that

the only thing that brought Stokes to sidebar was a mistaken belief that the

48 Strickland, at 667-68. 49 D.I. 90, at 27. 50 Id. 19 trial judge presided over his daughter’s adoption (number 11).51 Any

comments made by potential juror Collins were made at sidebar and could not

have contaminated the jury pool (number 12). Broomer does not make any

supported concrete allegations of prejudice in connection with his claim that

trial counsel failed to “obtain information and make arguments concerning the

composition of the jury pool” (number 13).

The Court addresses the remaining Batson claim in the AMPCR –

number 2 – separately. It asserts that trial counsel was ineffective and should

have focused on gender balance and not have “allowed 11 females to be seated

on the jury due to the fact that a female was shot.”52 There is much wrong

with this argument. First, to the extent it implies that the jury that convicted

Broomer was comprised of 11 women and one man, it is incorrect. The jury

that deliberated and returned verdicts was comprised of eight women and four

men, while three of the four alternate jurors were woman. Secord, while it is

true that a woman was shot, she was not killed. A man was killed. Why a

jury of mostly women would be more hostile to Broomer because a woman

also was injured is not explained. But third, and most importantly, Broomer

is arguing that trial counsel were ineffective because they did not intentionally

exercise their peremptory challenges based on gender. “Gender, like race, is

51 Tr. Aug. 8, 2016, at 56. 52 AMPCR, Attach 1, at 1, D.I. 79. 20 an unconstitutional proxy for competence and impartiality.”53 The Court

cannot find trial counsel ineffective because they did not improperly exercise

challenges based on gender. It is curious that a party alleging trial counsel

failed to aggressively pursue Batson violations would suggest as much.

Claim 2 of Broomer’s Response and claim numbers 1 and 6-9 of the

Batson-related arguments in the AMPCR listed above focus on alleged

deficiencies in trial counsel’s pursuit of the Batson claim they raised at trial.

He faults trial counsel’s response to the State’s explanations for the exercise

of its peremptory challenges, and proffers arguments that trial counsel could

have asserted, but did not, as to each stricken juror, as well as additional

arguments available to trial counsel.54 It is worth noting that, unlike trial

counsel who must present their arguments in the moment, Broomer has had

the benefit of the fullness of time to research Baston-related case law, study

the full jury selection transcript, and contemplate with virtually no temporal

constraints what arguments could be crafted to make the most persuasive

Batson challenge possible. Yet, the Court is not persuaded, even after

carefully considering the product of those exertions, that the Batson challenge

would have succeeded had trial counsel presented them as set out in

53 J.E.B. v. Alabama, 511 U.S. 127, 129 (1994). 54 Def.’s Resp, at 30-43, D.I. 124. 21 Broomer’s Response. Nor is the Court persuaded that trial counsel’s

presentation of the Batson challenge was deficient.

In its Opinion on Remand, the Court determined that the State’s

explanations for its strikes were race-neutral.55 Therefore, in relitigating the

Batson issues as an IAC claim, Broomer must convince the Court that the

arguments he contends trial counsel should have made would have persuaded

the Court that the State’s strikes were not race-neutral. Otherwise, Broomer

cannot meet Strickland’s prejudice requirement. The Court has considered

each of those enhanced arguments Broomer contends trial counsel failed to

make. It is unpersuaded that counsel was ineffective in not making them.

First, Broomer argues that there was no fact-based substantive reason

to strike juror Aleta Clay. She was employed as a “license inspector” by the

City of Wilmington. The State struck her because it thought she might be

familiar with the area of the shooting and the families of the people involved.56

Broomer argues that trial counsel should have argued that these reasons were

not fact-based, but speculative, and thus pretextual. It was trial counsel’s

contention that there was no information confirming that the juror did in fact

work in the area. This argument is not materially different from the one

Broomer argues trial counsel should have made. Whether the exercise of a

55 State v. Broomer, at 8, D.I. 57. 56 Tr. Aug. 8, 2016, at 91-92. 22 peremptory challenge is based on facts or speculation is not the issue. Trial

lawyers exercise peremptory challenges for a variety of speculative reasons,

often based on experience and intuition. What the State may not do is exercise

a strike based on race. The question is whether the State proffered a credible,

race-neutral explanation for its strike. Nothing Broomer has presented in his

AMPCR or Response persuades the Court that trial counsel were ineffective

in advocating his position with respect to Aleta Clay, or that the State struck

her based on her race.

Broomer next argues that “There is absolutely nothing wrong with a

[sic] Karen Price.”57 The State explained that it struck Karen Price because

she was “adamantly” opposed to the death penalty and seemed unaware that

this case was not a death penalty case.58 Trial counsel responded that the

State’s reason seemed illegitimate and the only reason for striking her was

because she was a black female.59 Neither the AMPC or the Response adds

anything qualitatively different to trial counsel’s argument. Therefore,

Broomer has not shown neither performance deficiency, nor prejudice.

Broomer addresses Natalia Munoz-Bonila, a Hispanic female, next.

The State explained that it struck her because, “Ms. Munoz’s education says

college, and her occupation is a housekeeper, that led me to believe either she

57 Def.’s Resp., at 33, D.I. 124. 58 Tr. Aug., 8, 2016, at 93. 59 Id., at 94. 23 wasn’t successful at college or education level may be incorrect, and for that

reason, I wasn’t too keen on her either way.”60 Broomer contends that trial

counsel should have contrasted Munoz-Bonila with two jurors who were

seated, Eric Gilchrist and Tyra Hearne.61 He claims both of those jurors went

to college and held jobs that did not require their level of education, but the

State did not strike them. Gilchrist listed his education as “shipping and

receiving,” while Hearne listed hers as “sales.”62 Gilchrist listed his education

as “college,” and Hearne listed hers as “post-grad.”63 It is not clear to the

Court that there is an obvious disparity between he levels of education of

jurors Gilchrist and Hearne and their occupations. But what Broomer fails to

mention is that both Gilchrist and Hearne are black.64 Apparently, he is under

the impression that they were “‘nonminority jurors who were seated.”65 This

mistake dooms his argument.

The final juror who was the subject of the Batson challenge at trial was

Jacqueline Riggs-Potts. Riggs-Potts was employed as a “judicial case

processor 1” in the Family Court.66 The State struck her because it was

concerned that both defense trial counsel practice in Family Court and “the

60 Id., at 92. 61 Def.’s Resp., at 35-36, D.I. 124. 62 Juror Profile. 63 Id. 64 Id. 65 Def.’s Resp., at 35-36, D.I. 124. 66 Juror Profile. 24 idea was it was just too close to home.”67 Trial counsel did not challenge this

explanation. Broomer now alleges that trial counsel was ineffective in

conceding the argument about this juror.68 The reason proffered by the State

is clearly race-neutral, and Broomer’s argument fails.

Broomer’s remaining arguments contend that trial counsel were

ineffective in not challenging the credibility of the State’s explanations based

on comparisons with seated jurors, and for not suggesting that stricken jurors

be recalled for further clarifying voir dire.69 The comparisons proffered by

Broomer are inapposite, and the suggestion to call back stricken jurors for

further questioning impractical and incapable of eliciting relevant

information.

C. Cross-Examination of Nicodemus Morris (Claim 3).

Broomer argues that trial counsel was ineffective in his cross-

examination of Nicodemus Morris. Morris was present with Mangrum when

he was shot and returned fire at Broomer and Mayfield as they fled the scene.

The particulars of this claim are difficult to follow and mostly consist of

representations that Morris’ credibility was not sufficiently put in doubt

67 Tr. Aug., 8, 2016, at 92-93. 68 Def.’s Resp., at 36, D.I. 124. 69 Id., at 37-44. 25 because he said different things to different people at different times, which

trial counsel did not effectively challenge on cross-examination.70

Broomer provides no specific citation to the record for any of the

statements he references in his Response, including various police reports, and

out of court statements, which typically are not part of the record. Instead of

simply treating these claims as unsubstantiated, the Court reviews the cross-

examination of Nicodemus Morris and make its own judgment of trial

counsel’s effectiveness.

Trial counsel impeached Morris with his criminal history,71 his receipt

of immunity for his conduct on the date of the shooting, including illegally

possessing a firearm and ammunition while prohibited from doing so,72 the

State’s agreement to continue his probation instead of seeking to have him

violated,73 his cooperation agreement with the State,74 his flight from the

scene, and his failure to cooperate with the State until after he had been

immunized.75 Trial counsel also cross-examined Morris regarding the events

giving rise to the State’s motive theory, and developed a counter-motive for

Mangrum to retaliate against Broomer because Broomer testified against

70 Def.’s Resp., at 46-49, D.I. 124. 71 Tr., Aug. 11, 2016, Nicodemus Morris Cross-examination, at 163-64. 72 Id., at 165-66. 73 Id., at 166. 74 Id., at 165-66. 75 Id., at 167-68. 26 Mangrum in a case in which they were co-defendants.76 He induced Morris

to admit he was armed with a 9mm handgun when both Mangrum and Morris

went back to the Fresh Grocer to “track Mr. Broomer down or locate Mr.

Broomer.”77 He cross-examined Morris on the positions of Mangrum,

Stevens, and Morris, with Morris agreeing that his testimony was inconsistent

with Stevens’ testimony.78 He questioned the reasonableness of Morris’

testimony that he ran 30 yards to retrieve his gun from where he has hidden it

when he observed the Focus, despite testifying that he had the gun on his

person earlier.79 He cross-examined Morris about the location of the 9mm

spent shell casings inducing Morris to concede that he “can’t explain” their

locations which “almost contradicts [his] testimony.”80 Finally, Morris

acknowledges his 9mm handgun, which he claims he gave to a friend, was

used in a shooting that night and another the next day.81 The Court concludes

that trial counsel’s cross-examination clearly was not deficient and Broomer

suffered no prejudice.

D. Cross-Examination of Tyezghaire Stevens (Claim 4).

76 Id., at 169-75. 77 Id., at 181. 78 Id., at 183-85. 79 Id., at 185-91, 198. 80 Id., at 193-205. 81 Id., at 206-07. 27 Broomer’s complaint that trial counsel did not effectively cross-

examine Tyzeghaire Stevens, who was shot also, suffers from the same

infirmities as his IAC complaint regarding the cross-examination of

Nicodemus Morris.82 Additionally, he claims that portions of Stevens’ out of

court statements are missing.83 He has not substantiated that claim. The Court

reviews the cross-examination of Stevens and makes its own judgment about

its effectiveness.

Stevens’ testimony was helpful to Broomer on several points. First, she

said she did not see Morris in the alley during the shooting, contrary to what

Morris would testify.84 She claims to have seen four occupants of the blue

Focus, contrary to the State’s claim that there were only two occupants.85 She

could not identify anyone in the car, and she did not see anyone get out of the

car.86 All of these points were helpful to Broomer, and for trial counsel to

attempt to attack her credibility as Broomer suggests, would have undermined

her helpfulness. The cross-examination of Tyezghaire Stevens clearly was

not deficient and Broomer suffered no prejudice.

E. Failure to Object to the Prosecution’s Closing Argument (Claim 5).

82 AMPCR, Attach 1, at 4, D.I. 79; Def.’s Resp., at 50-52, D.I. 124. 83 Id. 84 Tr. Aug. 11, 2016, Tyezghaire Stevens Cross-examination, at 88. 85 Id., at 91. 86 Id., at 93-94. 28 Broomer faults both trial counsel and appellate counsel for failing to

address what he refers to as prosecutorial misconduct in summation.87 This

argument fails because appellate counsel did raise issues of prosecutorial

misconduct of appeal. The Delaware Supreme Court was not persuaded.88

New claims of failure on counsel’s part to address prosecutorial misconduct

are not cited with specificity to the record and therefore are unsubstantiated.

F. Failure to Object to Evidence of Prior Drug Trial (Claim 6).

Broomer alleges that trial counsel was ineffective in failing to object to

evidence of a prior drug trial and what he describes as “unchallenged hearsay

testimony” from Morris that Broomer was upset that Mangrum had called him

a snitch.89 Trial counsel’s affidavit explains that, because Broomer testified

against Mangrum at the prior drug trial, evidence of that trial would have

served to undercut the State’s theory that Broomer had a motive to harm

Mangrum.90 Rather, it was Mangrum who had the motive to harm Broomer.91

Morris testified that he observed a trial in which Broomer and Mangrum

were co-defendants.92 He further testified that Broomer testified falsely that

the drugs that were the subject of the charges belonged to Mangrum.93 Morris

87 AMPCR, Attach 1, at 2-4, D.I. 79; Def.’s Resp., at 53-56, D.I. 124. 88 Broomer v. State, at 7-13, D.I. 53. 89 AMPCR, Attach 1, at 4, D.I. 79; Def.’s Resp, at 57, D.I. 124. 90 Trial Counsel’s Aff. at 6, D.I. 81. 91 Id. 92 Tr. Aug. 11, 2016, Nicodemus Morris Direct Examination, at 140-41. 93 Id., at 140. 29 then testified that Mangrum was angry with Broomer and told people what

Broomer had done.94 After that, the two were no longer friends.95 Morris

testified on re-direct examination that calling someone a snitch was deemed

disrespectful and was not appreciated and would “cause problems.”96

Again, Broomer’s failure to cite to the record with precision

undermines his argument. He asserts that trial counsel failed to object to the

hearsay statement that Broomer was upset that Mangrum called him a snitch.

However, he does not identify a specific hearsay statement. To the extent he

is referring to his own reaction, it is not hearsay. To the extent he is referring

to Mangrum calling Broomer was a snitch, that statement is not hearsay

because it was not offered to prove Broomer was a snitch. It was offered to

elicit Broomer’s reaction to it. In any event, the record reflects that Morris

made no explicit hearsay statement. Broomer has failed to substantiate his

claim that trial counsel was ineffective in failing to object to hearsay

testimony. Regarding the testimony about the drug trial generally, the Court

finds trial counsel’s explanation a reasonable strategic choice and that does

not rise to the level of a performance deficiency. Broomer suffered no

prejudice from that strategic choice.

G. Carl Rone Issues (Claim 7).

94 Id., at 141-42. 95 Id., at 143. 96 Tr. Aug. 11, 2016, Nicodemus Morris Re-direct Examination, at 212-13. 30 Carl Rone (“Rone”), a forensic firearms examiner, testified for the State

at trial and offered certain expert opinions. In May 2018, after trial and after

the completion of Broomer’s direct appeal, Rone was arrested and charged

with providing false information on time sheets for work in 2016 and 2017.97

He later pled guilty to Theft by False Pretense and Falsifying Business

Records.98

Broomer argues that: 1) exculpatory information about Rone’s criminal

misdeeds was not provided to the defense in violation of the State’s Brady99

obligations; 2) trial counsel did not effectively cross-examine Rone; and 3)

trial counsel did not retain a defense ballistics expert.100 The Rone claims

miss the mark. Although the charges against Rone alleged illegal conduct

during 2016 and 2017, there is no evidence that anyone other than Rone knew

he was committing crimes at that time. Broomer does not explain how the

State was supposed to disclose the details of Rone’s misconduct to the defense

when the State was unaware of that misconduct itself. The Court is unaware

of any rule of law requiring the retroactive re-examination of the State’s

compliance with Brady solely because a witness was convicted of a crime

97 D.I. 90, at 45-46. 98 Id. 99 Brady v. Maryland, 373 U.S. 83 (1963). 100 AMPCR, Attach 1, at 4; D.I. 79; Def.’s Resp., at 59-63, D.I. 124. 31 years after the witness testified. Thus, there is no basis to claim a Brady

violation.

The criticism of trial counsel’s cross-examination of Rone must be

viewed in the context of what information was known to trial counsel, and

trial counsel’s defense strategy. Since Rone’s criminality was unknown to the

State, it obviously was unknown to trial counsel, and could not have provided

a basis upon which to cross-examine Rone. Further, in devising a defense

strategy, trial counsel was confronted with the incontrovertible fact that

Broomer was the driver of a vehicle that fled from the scene of a homicide.101

The strategy adopted by trial counsel – that Broomer was unaware Mayfield

was going to shoot Mangrum and that he fled out of panic – was without doubt

a reasonable strategy, and likely the best one available.102 On direct-

examination, Rone identified the .40 caliber handgun recovered from where a

police officer saw it being thrown from Broomer’s car as having fired the .40

caliber shell casings recovered from the homicide scene.103 Rone was unable

to compare the 9mm casings from the scene with a particular weapon because

no 9mm was recovered.104 He did determine that the 9mm casings were fired

101 A police officer witnessed the shooting. A .40 caliber handgun was recovered from an area where another police officer saw it being thrown from Broomer’s vehicle and a .380 caliber handgun with one spent casing five live rounds was also found in the area along the path of the chase. 102 Trial Counsel’s Aff., at 7-8, D.I. 81. 103 Tr, Aug, 11, 2016, Carl Rone Direct-Examination, at 23-23. 104 Id. 32 from the same gun, however.105 Nothing in Rone’s testimony was inconsistent

with the defense strategy, and in fact his testimony was consistent with it.

Thus, there would have been no purpose in attacking Rone’s credentials or

testimony.

Broomer claims that trial counsel was ineffective in failing to obtain a

defense forensics firearm examiner. Because Rone’s conclusions supported

the defense’s strategy, there was no need to retain one. That decision was

reasonable and not a performance deficiency. Since postconviction counsel

has not retained one either, it is mere conjecture that a defense expert would

have contradicted Rone. Conjecture does not establish prejudice.

H. Failure to Investigate and Call Exculpatory Witnesses (Claim 8).

Broomer suggests that two potential witnesses, Mildred Munce, and co-

defendant Atiba Mayfield, would have provided innocent explanations for

him being at or near the crime scene.106 He alleges that the failure to call them

amounted to IAC. He also claims text messages from a cell phone reflect an

innocent intent to go grocery shopping nearby.107

Trial counsel state in their affidavit that they hired a private investigator

who interviewed a Katie Munce, as a potential witness.108 She provided no

105 Id. at 24-26. 106 AMPCR, at 5, D.I. 79. 107 Id. 108 Trial Counsel’s Aff., at 8, D.I. 81. 33 useful information.109 They were not provided any information about Mildred

Munce.110 Nor has Broomer provided an affidavit from Mildred Munce

supporting his claim about her proposed testimony. Moreover, his claim that

cell phone messages and Mildred Munce would establish that he was in the

area to go grocery shopping is of marginal relevance at best. First, the State

did not contest that he was in the vicinity of the grocery store. Second, it does

not exclude killing Mangrum as an additional reason for being in the area.

Finally, it does not explain why he was at the location of the homicide, which

was not the grocery store. There is no reasonable likelihood that this

additional evidence would have altered the outcome of the trial.

The claim relating to Mayfield fails as well. As the represented co-

defendant, Mayfield was not available to trial counsel to interview or call as a

witness without his consent. That consent almost certainly would not have

been given. He had just been convicted at his own trial in June and was

pending sentencing. Any testimony he might give on Broomer’s behalf could

have been used against him at any re-trial if his appeal was successful. More

importantly, as trial counsel noted, Mayfield gave a statement to the police

implicating Broomer.111

I. The Flight Instruction (Claim 9).

109 Id. 110 Id. 111 Id. 34 Broomer claims trial counsel was ineffective in not objecting to the

flight instruction given by the Court.112 The Court give the standard flight

instruction which was fully supported by the facts.113 There was no

performance deficiency or prejudice.

J. The Accomplice Liability Instruction/Absence of Probst Instruction (Claim 10).

In the AMPCR , Broomer claims that trial counsel “should have more

effectively challenged the absence of any evidence of being an accomplice

and the use of the accomplice jury instruction.”114 The issue of the accomplice

liability jury instruction was litigated on direct appeal. The Supreme Court

upheld this Court’s instruction on accomplice liability.115 To the extent this

claim seeks to re-litigate the propriety of that instruction, it is barred by Rule

61(i)(2). To the extent it argues that trial counsel was ineffective in failing to

object to the Court giving any accomplice liability instruction, it has no merit.

There was ample evidence in the record for such an instruction.

In his Response, Broomer alleges that trial counsel was ineffective in

not requesting a Probst116 specific unanimity instruction.117 But, specific

unanimity on a principal/accomplice theory for conviction normally is not

112 AMPCR, Attach 1, at 5-6, D.I. 79. 113 Superior Court Pattern Criminal Instructions, § 4.39. 114 AMPCR, Attach 1, at 6, D.I. 79. 115 Broomer v. State, at 4-6, D.I. 53. 116 Probst v. State, 547 A.2d 114 del. 1988). 117 Def.’s Resp., at 68-70, D.I. 124. 35 required.118 None of the specific circumstances requiring a specific unanimity

instruction identified in Probst were present here.119

K. The Court’s Alleged Private Off the Record Communication with the Jury (Claim 11).

In his AMPCR, Broomer alleges that trial counsel should have objected

to the Court speaking to the jury privately and off the record during

deliberations, and to his personal absence from a teleconference on remand

addressing the Batson issue.120 In his Response he alleges that the Court

“announced that it was going into the jury room to see the jury with a court

reporter. But he did not bring the court reporter with him.”121 He also makes

oblique references to sidebar scheduling conferences, and a question from the

jury.122

At trial, the Court most emphatically did not engage in any private off

the record conversations with the jury during its deliberations, or at any other

time. The jury began its deliberations on August 15, 2016 but did not reach a

verdict that day. With the permission of counsel, instead of reassembling

everyone in the courtroom to excuse the jury, the Court, along with a court

reporter, went into the jury room to excuse the jury for the day. There, the

118 Probst, at 120. 119 Id., at 121. 120 AMPCR, Attach 1, at 6, D.I. 79. 121 Def.’s Resp., at 71, D.I. 124. 122 Id. 36 Court excused the jury, reminded them of the Court’s usual instructions,

established a time to resume deliberations the following day, and instructed

the jury not to resume their deliberations until all 12 jurors were present.

Apparently that event was not transcribed. Regardless, the Court did not

engage in any behavior prejudicial to Broomer. The other instances where

Broomer complains he was not physically present were sidebar scheduling

conferences and the Baston conference on remand.123 He is unable to show

any prejudice because of his absence or performance deficiency by counsel.

L. Failure to Object to the Verdict Form (Claim 12).

Broomer faults trial counsel for failing to object to the verdict form

because it did not contain a “hung jury” option.124 The jury was properly

instructed and there is no legal basis for trial counsel to request a “hung jury”

option. In any case, such a request would have been denied.

M. Absence of a Batson Hearing on Remand (Claim 13).

Broomer alleges appellate counsel should have “taken further steps to

have a Batson hearing on remand,” at which the excusal of certain other jurors

could have been explored.125 Broomer does not identify what further steps

counsel should have undertaken. In his Response he mostly reiterates many

of the same arguments advanced in his initial Batson argument. The Court

123 Broomer was present when the jury’s note was answered. 124 AMPCR, Attach 1, at 6, D.I. 79; Def.’s Resp., at 57-59, D.I. 124. 125 Id. 37 has already addressed the bulk of this claim in Section V(A)(1), above. To

the extent this claim argues for challenging the excusal of other jurors, such a

challenge would have been outside the scope of remand. This Court was

directed to complete its analysis of the Batson claim. It was not authorized to

conduct a full-scale review of the jury selection process.

N. Explaining the Conspiracy Charge to Broomer (Claim 14).

In his AMPCR, Broomer simply writes, trial counsel “explained to

Defendant that if Defendant was found not guilty of Conspiracy, then he could

not be found guilty of any of the other chargers. The jury verdict proved this

not to be true.”126 In his Response, Broomer explains that this alleged

misinformation adversely affected his consideration of the State’s plea

offer.127 In their affidavit, trial counsel represent that they, “tried to explain

to [Broomer] the legal requirements that the State needed to prove including

theory of accomplice liability and how that theory applied to his case.”128

Prior to the start of the trial, the Court conducted a colloquy with

Broomer. The purpose of that colloquy was to discuss with him the State’s

plea offer. The Court explained to Broomer the charges and potential

sentences he was facing if he were to be convicted at trial, including a sentence

126 AMPCR, Attach. 1, at 6, D.I. 79. 127 Def.’s Resp., at 77, D.I. 124. 128 Trial Counsel’s Aff., at 10, D.I. 81. 38 of life without probation or parole on the murder first degree charge.129 The

Court reviewed the plea offer extended by the State which contemplated a no

contest plea to Manslaughter and PFDCF with certain sentencing

agreements.130 Those agreements were that the State would not ask for more

than 15 years in prison, while Broomer would not ask for less than eight.131

The Court advised Broomer that it would order a presentence investigation

and what information would be provided to the Court as a result of that

investigation.132 The Court also told Broomer that it would take the parties

sentencing recommendations very seriously, and absent some unforeseen

circumstance there was a “very good likelihood” it would impose a sentence

within the recommended range.133 Broomer told the Court he understood the

terms of the plea offer.134 The Court told Broomer that his co-defendant,

Mayfield, was convicted of first degree murder on virtually the same evidence

the jury would hear in his case. 135 The Court then explained the concept of

accomplice liability to him.136 Broomer told the Court he understood.137 He

also told the Court that he had enough time to talk to trial counsel about his

129 Tr. Aug. 8, 2016, at 4-5. 130 Id., at 6-7. 131 Id., at 8. 132 Id., at 7. 133 Id., at 8-9. 134 Id., at 9. 135 Id., at 9-10. 136 Id., at 10-11. 137 Id., at 11. 39 decision, and that he had talked to his parents as well.138 The Court took the

unusual step of trying to give Broomer a sense of perspective about an eight

to 15 year sentence for someone his age.139 Lastly, Court provided Broomer

with an additional opportunity to meet with trial counsel and his family.140 It

was with a full understanding of the plea offer, the potential consequences of

trial, the concept of accomplice liability, and the risks involved, Broomer

elected to reject the plea offer.141

Considering the representations of trial counsel in their affidavit, and

the extensive plea rejection colloquy the Court conducted with Broomer, the

Court gives no weight to the unsworn allegation in the AMPCR and Response

that trial counsel misled him about the consequences of an acquittal of the

conspiracy charge. The simple fact is that Broomer was determined to go to

trial, and no amount of persuasion would convince him otherwise.

O. Inadequate Investigation (Claim 15).

Broomer repeats his allegation that trial counsel’s investigation was

inadequate because they did not interview unnamed people in a crowd at the

scene of the shooting as well as Mildred Munce and Atiba Mayfield.142 In

their affidavit, trial counsel state that they retained an investigator who, along

138 Id., at 11-12. 139 Id., at 13-15. 140 Id., at 15-16. 141 Id. 142 Def.’s Resp., at 78, D.I. 124. 40 with trial counsel, interviewed anyone identified in the police reports and

anyone Broomer wished to be interviewed.143 They also note Broomer was

not cooperative with the defense team.144 Broomer has not identified any

witnesses, other than Munce and Mayfield145 or what any witness would say

helpful to Broomer. Broomer has failed to substantiate this claim.

P. The Cellphone (Claim 16).

Broomer claims that trial counsel were ineffective in not retrieving

cellphone messages purporting to provide an innocent explanation for him

being in the area to give Mildred Munce a ride to a store, or to have Munce or

Mayfield testify to that effect.146 He also repeats his allegations regarding a

trial counsel’s failure to retain a ballistics expert.147 Trial counsel state that

they did review Broomer’s cellphone.148 They found no exculpatory

information on it, but instead found incriminating information related to

Broomer seeking to purchase of a gun.149

The Court previously addressed claims related to Munce and Mayfield

in Section V(H) and to the value of a defense ballistics expert in Section V(G).

143 Trial Counsel’s Aff. at 10-11, D.I. 81. 144 Id. 145 See, Sec. V(H). 146 AMPCR, Attach. 1, at 7, D.I. 79; Def.’s Resp., at 79, D.I. 124. 147 Id. 148 Trial Counsel’s Aff. at 11, D.I. 79. 149 Id. 41 There is no need to address them again here. Broomer has failed to

substantiate this claim.

Q. Change of Venue (Claim 17).

Broomer argues that trial counsel was ineffective in failing to move for

a change of venue.150 There was no basis for changing the venue of trial and

such a motion would have failed. Publicity was not extensive, and the Court

had little difficulty impaneling an impartial jury.

R. Unreported Sidebar Conferences (Claim 18).

Broomer reiterates the allegations addressed above at Section V(K)

and adds an allegation that appellate counsel was ineffective in failing to raise

an issue about unreported sidebar conferences. Typically, the Court

announced prior to an off the record sidebar conference that it would address

scheduling matters.151 In fact, Broomer has not pointed to any off the record

sidebar conference that was not preceded by the Court stating the sidebar

conference would address scheduling. Broomer has failed to identify any

prejudice to him because appellate counsel did not question “the absence of

150 AMPCR, Attach. 1, at 7, D.I. 79; Def.’s Resp., at 80, D.I. 124. 151 See, e.g., Tr. Aug. 8, 2016, at 33 (THE COURT: Come to sidebar regarding scheduling); Id., at 192 (MR. ROBERTSON: Can we approach scheduling-wise? THE COURT: Sure); Tr. Aug. 11, 2016, at 50 (THE COURT: Thank you Mr. Rone. You can step down. Sidebar for scheduling); Tr. Aug. 12, 2016, at 119-20 (THE COURT: Sidebar, please, regarding scheduling.). 42 sidebar conversations in the record on appeal.” Thus, has failed to substantiate

this claim.

S. Failure to Advise Broomer He Could Appeal to the United States Supreme Court (Claim 19).

Broomer makes the claim in his Response that “Had Counsel appealed

Broomer’s direct appeal to the U. S. Supreme Court, Broomer’s case would

have been overturned due to the violation of his constitutional rights and

violation of his 6th and 14th Amendment rights.”152 Appellate counsel disputes

this claim.153 There is absolutely no reason to believe this assertion is true,

and every reason to believe it is not. Broomer has not established that any of

his constitutional rights were violated. He has failed to offer any persuasive

reason the believe the United States Supreme Court, which grants certiorari

in very few cases would have granted certiorari in his. So, even if appellate

counsel had not advised him about an appeal to the United States Supreme

Court, Broome cannot show prejudice.

T. Failure to Request a Chance Instruction (Claim 20).

Broomer withdrew this claim in his Response.154

U. Permitting Det. Fox to Testify as an Expert (Claim 21).

152 AMPCR, Attach 1, at 7, D.I. 79; Def.’s Resp. at 82-83, D.I. 124. 153 Appellate Counsel’s Aff., at 8-9, D.I. 82. 154 Def.’s Resp., at 84, D.I. 124. 43 Broomer asserts that trial counsel allowed Det. Fox to testify as an

expert without being designated as an expert witness.155 His specific

complaint is somewhat difficult to fathom, but it appears to be that Det. Fox

gave expert testimony comparing a .380 handgun recovered after the chase

with a photograph of a gun on Broomer’s cellphone. This argument fails

because the Delaware Supreme Court held that Det. Fox’s opinion that gun in

the photograph is “consistent” with a gun recovered from the Focus was not

an expert opinion.156

VI. CONCLUSION

For the reasons set forth above, Defendant Michael Broomer’s

Amended Motion for Postconviction Relief is DENIED.

IT IS SO ORDERED.

/s/ Ferris W. Wharton Ferris W. Wharton, Judge

155 AMPCR, Attach 1, at 7, D.I. 79; Def.’s Resp., at 85-86, D.I. 124. 156 Broomer v. State, at 16, D.I. 53. 44