IN THE SUPERIOR COURT OF THE STATE OF DELAWARE STATE OF DELAWARE, ) ) ) v. ) I.D. No. 1305011774A ) ) DARRELL COLEMAN, ) ) Defendant. )
MEMORANDUM OPINION
Submitted: October 2, 2020 Decided: February 12, 2021
Upon Consideration of the Commissioner’s Report and Recommendation on Defendant’s Motion for Postconviction Relief, ADOPTED.
Upon Consideration of Defendant’s Appeal from the Commissioner’s Report and Recommendation on Defendant’s Motion for Postconviction Relief, DENIED.
Martin O’Connor, Esquire and Elizabeth McFarlan, Esquire, Deputy Attorneys General, Department of Justice, Wilmington, Delaware. Attorneys for the State.
Patrick Collins, Esquire of Collins & Associates, Wilmington, Delaware. Attorney for Defendant.
MEDINILLA, J. I. INTRODUCTION
Defendant, Darrell1 Coleman (“Defendant”) brings this Motion for
Postconviction Relief claiming ineffective assistance of counsel2 after he was
convicted for the murder of Marvin Moore who was shot in the face and chest on
Mother’s Day in 2013. The killing took place following a series of heated cell phone
conversations between Defendant and Moore that culminated in the fatal rendezvous
in the Riverside area of Wilmington.
The Court has considered Defendant’s Motion, the State’s Response,3
Defendant’s Reply, 4 the corresponding Evidentiary Hearings,5 Post-Hearing
Memoranda,6 the Commissioner’s Report and Recommendation, 7 Defendant’s
Appeal from the Commissioner’s Report, 8 the State’s Response to Defendant’s
Appeal,9 the sentence imposed upon Defendant, and the record in this case. For the
1 Defendant’s given name is Darcell but, since indictment, he has been referred to as Darrell. 2 See Defendant’s Motion for Postconviction Relief Filed Pro Se, D.I. 94 [hereinafter the Court will refer to docket numbers]; see also Defendant’s Amended Motion for Postconviction Relief, D.I. 108. 3 See State’s Response to Defendant’s Amended Motion for Postconviction, D.I. 111. 4 See Defendant’s Reply, D.I. 112. 5 See Evidentiary Hearing Held on August 22, 2018 Before Commissioner Manning, D.I. 119; see also Evidentiary Hearing Held Before Judge Manning on November 30, 2018, D.I. 122. 6 See Defendant’s Post-Hearing Memorandum for Amended Motion for Postconviction Relief, D.I. 124; see also State’s Response to Defendant’s Post-Hearing Memorandum, D.I. 127. 7 See Commissioner’s Report and Recommendation, D.I. 128 [hereinafter Comm’r Report]. 8 See Defendant’s Appeal from Commissioner’s Findings of Fact and Recommendation, D.I. 131. 9 See State’s Response to Defendant’s Appeal of Commissioner’s Report and Recommendation, D.I. 135. 1 reasons set forth here, Commissioner Manning’s Report and Recommendation are
ADOPTED. Defendant’s Motion for Postconviction Relief is DENIED.
II. FACTUAL AND PROCEDURAL BACKGROUND 10
Early during the day on May 12, 2013, Moore had spent time with his six-
year old son, J.R., who had been visiting Moore as part of a planned visitation, J.R.
was scheduled to return to his mother’s home that evening.11 Defendant was then
J.R.’s mother’s boyfriend and he and Moore had been arranging J.R.’s return.12 The
final arrangement called for Moore to drop off J.R. at a Wawa near Memorial Drive
in New Castle.13
It is not fully clear exactly what ignited harsh exchanges between the two men
that day but what is known is that Moore decided not to show up to the Wawa as the
verbal cell phone arguments continued. Instead, Moore’s two friends Tierra Battles
(“Battles”) and Dearius Riley (“Riley”) took J.R. to the Wawa while Moore waited
at a friend’s house nearby.14
At the Wawa, J.R. got into Defendant’s vehicle with plans that Defendant
would drive him back to his mother’s house. In the Wawa parking lot, an argument
10 The recitation is from the account of facts found in the Supreme Court of Delaware decision in Coleman v. State, 141 A.3d 1037, 2016 WL 3387192, (Del. June 3, 2016) (TABLE). 11 Coleman, 2016 WL 3387192, at *1. 12 Id. 13 Id. 14 Id. 2 ensued between Defendant and Battles when Defendant insisted on knowing why
Moore did not show up.15 Riley tried to defuse the argument and asked if Defendant
wanted him to go get Moore but Defendant declined, stating “[i]f [Moore] was a
man, [he] would have come down.”16 Despite the continued arguments, J.R. left
with Defendant. 17
After leaving the Wawa, Battles and Riley returned to the friend’s house and
told Moore about the confrontation with Defendant. Moore responded with “I’m
sorry, but I got to go take care of my business” and expressed he was going to meet
Defendant “to fight.” 18 Riley heard Moore state on the phone “if you want to fight,
we could fight; if you want to shoot, we could shoot.”19 Riley told police he believed
that Moore was going to his house to get a gun before confronting Defendant but did
not know if Moore was really going to get one20 or if it was just “angry talk.”21 Riley
further made a statement to police that he overheard Moore on the phone: “[Moore]
is talking about ‘…I’m about to go to Riverside. He is talking about that he wanted
me to meet him at Riverside, so that’s where I’m going to go; like f*** him, he’s
15 Coleman, 2016 WL 3387192, at *1. 16 Id. 17 Id. 18 Id. 19 D.I. 131, at 5. 20 Defendant’s Appendix to Amended Motion for Postconviction Relief, D.I. 109, at A335. 21 Id. at A347. 3 dead.’”22 Moore and Defendant arranged to meet near Peralta’s Market in
Riverside.23
When Defendant arrived at the agreed-upon location, he backed his vehicle
down a one-way street and parked.24 As Moore walked across the street from
Peralta’s Market, Defendant left his vehicle and ran diagonally back across the street
between two cars.25 Moore was shot. Defendant then left the scene in his car. Upon
arrival to the scene, police determined that Moore had suffered two gunshot
wounds.26 He also had a revolver between his thighs.27
On May 13, 2013, J.R. was interviewed by the Children’s Advocacy Center.
He stated that Defendant picked him up at the Wawa and, before taking him to his
mother, drove to the Riverside area where he witnessed Defendant shoot Moore. 28
When local law enforcement could not locate Defendant in Delaware, they called
upon the U.S. Marshall Service for assistance. On May 31, 2013, Defendant was
apprehended by the U.S. Marshall Service in Newark, New Jersey.29
22 D.I. 109, at A347. 23 Coleman, 2016 WL 3387192, at *1. 24 Id. 25 Id. at *2. 26 Id. 27 Id. 28 Id. 29 Id. 4 A. Procedural Background
A Grand Jury indicted Defendant for Murder First Degree, Possession of a
Firearm During the Commission of a Felony (“PFDCF”), and Possession of a Deadly
Weapon By a Person Prohibited (“PDWBPP”).30 During a five-day trial, the State
presented overwhelming evidence to support both charges.31
Defendant elected not to testify.
On October 27, 2014, the jury returned guilty verdicts against Defendant of
Murder in the First Degree and PFDCF.32 On February 20, 2015, this Court
sentenced Defendant to life imprisonment for Murder First Degree, and three years
at Level V for PFDCF.33 Defendant appealed the conviction, which the Supreme
Court upheld on June 3, 2016.34
On July 5, 2016, Defendant filed a timely Motion for Postconviction Relief
(“Rule 61”).35 On July 25, 2017, Defendant, through assistance of appointed
counsel, filed an Amended Rule 61 Motion.36 Timothy Weiler, Esquire, (“Trial
Counsel”) filed his Affidavit, responding to Defendant’s Rule 61 claims on August
30 Indictment, True Bill Filed No. 128, D.I. 3. The PDWBPP charge was severed prior to trial. 31 See Coleman, 2016 WL 3387192, at *3 (detailing the overwhelming State’s evidence supporting Defendant’s conviction.). 32 D.I. 63. 33 See Sentencing Calendar: Defendant Sentenced, D.I. 79; see also Sentence: ASOP Order Signed & Filed on 03/03/15. 34 See Coleman, 2016 WL 3387192. 35 D.I. 94. 36 D.I. 108. 5 23, 2017. The State filed its Response on September 22, 2017 and Defendant filed
his Reply on October 27, 2017. Defendant’s Amended Rule 61 Motion was referred
to then-Superior Court Commissioner Bradley Manning (“Commissioner”)37
pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Procedure Rule
62(a)(5).
In his Rule 61 Motion, Defendant argued that Trial Counsel was ineffective
in two ways. First, Defendant says his counsel failed to properly develop the
firearm/toolmark evidence at trial. Second, Defendant faults Trial Counsel for
failing to litigate a D.R.E. 609 motion at trial. The Commissioner called an
evidentiary hearing under Criminal Rule 61(h) limited to Defendant’s first claim
regarding firearm/tool mark evidence,38 principally related to State’s ballistic expert,
Carl Rone (“Rone”).39 The Commissioner conducted two hearings on August 22,
2018, and November 30, 2018. Although Rone was not called to testify, 40 the
Commissioner heard testimony from both Defendant and Trial Counsel.
37 In November 2018, Commissioner Manning was appointed to the Court of Common Pleas. J. Manning was sworn in to CCP during the pendency of this Motion, retained jurisdiction, and issued his Report and Recommendation while sitting by designation in the role of Superior Court Commissioner. For ease of reference and purposes of this ruling only, J. Manning is referred to as Commissioner. 38 D.I. 113. 39 Comm’r Report, at 4. 40 Id. at 5 (“Shortly thereafter, it was learned that Rone had been fired by the [DSP] and charged with a number of crimes for falsifying time sheets….Neither side elected to call Rone as a witness, presumably due to the pending legal case against him.”). 6 At the first hearing, Defendant admitted for the first time that “he pulled out
his own gun and shot Moore….”41 At the close of the hearings, Defendant and the
State filed their respective post-hearing memoranda. 42 On April 23, 2019, the
Commissioner issued his Report and Recommendation concluding that Defendant’s
Rule 61 Motion should be denied.43
On June 11, 2019, Defendant appealed the Report arguing that it: (1)
mischaracterizes Trial Counsel’s relationship with Defendant; (2) misstates the
record about the firing pin evidence; (3) improperly holds Defendant’s testimony to
a beyond reasonable doubt standard; (4) improperly finds that a reasonable
probability of a different result does not exist; and (5) improperly finds that
Defendant was not prejudiced. 44 Though not addressed in that order, each objection
is fully considered below. The State responded seeking to have this Court uphold
the Commissioner’s findings and recommendation.45 The matter is now ripe for
disposition.
41 Comm’r Report, at 12. 42 D.I. 124; D.I. 127. 43 Comm’r Report, at 19. 44 See generally D.I. 131. 45 D.I. 135. For reasons still not quite clear, that appeal was initially referred to another commissioner who issued a second report and recommendation that Defendant’s Rule 61 motion be denied. See D.I. 138. Both parties agreed that the second report be vacated. The Court has done so and Defendant’s appeal of the Commissioner’s Report is considered solely on the basis of Defendant’s objections and the State’s response to the first. See Order Vacating Commissioner Parker’s January 21, 2020 Report, D.I. 143. 7 III. STANDARD OF REVIEW
A. Judicial Review of Commissioner’s Report
Under Rule 62(a)(5), the Commissioner, to which the Court referred this Rule
61 motion, is permitted to conduct hearings and submit proposed findings of fact
and recommendations for the disposition of that motion by a judge.46 The Court
“may accept, reject or modify, in whole or in part, the findings of fact or
recommendations made by the Commissioner.”47 Having received timely objections
to the Commissioner’s recommendations, the Court now makes a de novo review of
“those portions of the report” to which an objection is made. 48
B. Ineffective Assistance of Counsel
To succeed on his ineffective assistance of counsel claims, Defendant must
demonstrate: (1) “that trial counsel’s performance was objectively unreasonable”49
and (2) that if counsel was deficient, that there was a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.”50 Mere allegations of ineffectiveness are not enough.51 Counsel “may
not be faulted for reasonable miscalculation or lack of foresight or for failing to
46 DEL. SUPER. CT. CRIM. R. 62(a)(5). 47 Id. 62(a)(5)(ii). 48 Id. 62(a)(5)(iv). 49 Sykes v. State, 147 A.3d 201, 211 (Del. 2015) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). 50 Strickland, 466 U.S. at 694. 51 Younger v. State, 580 A.2d 552, 556 (Del. 1990). 8 prepare for what appear to be remote possibilities.” 52 There is a strong presumption
that a defense counsel’s conduct constituted sound trial strategy53 and Defendant
must make and substantiate concrete allegations that overcome this strong
presumption that counsel’s conduct fell within a wide range of reasonable
professional assistance.54 Finally, a reviewing court must “avoid peering through
the lens of hindsight.”55
IV. DISCUSSION
A. Defendant Was Informed of Possible Self-Defense Claim
At the evidentiary hearing before the Commissioner, Defendant explained that
he never admitted to Trial Counsel that he shot Moore because he did not feel
comfortable doing so.56 He further claimed that Trial Counsel never discussed the
possibility of asserting a self-defense claim.57 Blaming both lack of trust and
communication, he argues that the failure to establish “a relationship of trust”58
forced Defendant to get advice from prison paralegals,59 namely that Delaware did
not recognize self-defense claims. Conversely, Trial Counsel testified he enjoyed a
52 State v. Finn, 2012 WL 1980566, at *4 (Del. Super. May 23, 2012) (citing Harrington v. Richter, 562 U.S. 86, 102-110 (2011)). 53 Strickland, 466 U.S. at 694. 54 See Salih v. State, 962 A.2d 257, 2008 WL 4762323, at *1 (Del. Oct. 31, 2008) (TABLE); see also Albury v. State, 551 A.2d 53, 59 (Del. 1988). 55 State v. Wright, 653 A.2d 288, 295 (Del. Super. 1994). 56 D.I. 131, at 3. 57 Comm’r Report, at 11. 58 D.I. 131, at 4. 59 Id. 9 good relationship, and that Defendant had sent him notes complimenting and
thanking him for his efforts.60 But letters to Trial Counsel from Defendant suggested
a more strained attorney-client relationship.61
Nevertheless, the Commissioner found Defendant’s testimony “wholly
unconvincing” that the viability of a self-defense claim was never explained to him. 62
He considered evidence that Trial Counsel visited Defendant pre-trial on at least
eight occasions,63 and noted that Trial Counsel logged two video-phone interviews
with Defendant and mailed him at least forty items of discovery and/or letters. 64
Despite the noted communications, Defendant objects to the Report’s
mischaracterization of the attorney-client relationship, and maintains Trial Counsel
was ineffective when he failed to meet with him during the six weeks leading up to
trial and, more importantly, during trial, where he did not have mid-trial discussions
with Defendant about the facts or his decision not to testify. 65 The assertion of
ineffectiveness included “when [Defendant] told [him] that he did not want to testify,
[Trial Counsel] did not ask why, ask any questions, or offer any advice.” 66 And that
as the case was developing at trial (to include, in part, Riley’s testimony that he
60 D.I. 131, at 4. 61 Id.; see also D.I. 124, at 10. 62 Comm’r Report, at 5. 63 Id. at 12. 64 Id. at 13. 65 Id. at 6. 66 D.I. 131, at 6. 10 believed victim Moore was going to get a gun before he confronted Defendant,) that
Trial Counsel failed to “take the opportunity”67 to do more with the self-defense
claim.
No matter how either side might characterize any given meeting or
communication, there is no doubt that Trial Counsel adequately informed Defendant
of the potential for a self-defense argument. On December 19, 2013, Trial Counsel
sent a detailed letter to Defendant explaining how the evidence did not support an
“identity” defense and that the State was expecting an assertion of self-defense on
Defendant’s part. 68 Additionally, contemporaneous notes of Trial Counsel from an
August 2014 video-phone meeting with Defendant indicate that Defendant did not
want to argue self-defense.69 Most importantly, six weeks prior to trial, on
November 11, 2014, a third letter from Trial Counsel to his client informs Defendant
that “[t]he most viable defense to you (although not 100% perfect) is that you acted
in self-defense . . . [and] that YOU BELIEVED the use of deadly force was justified
because YOU believed [it] was necessary for the purpose of protecting yourself.” 70
The record supports the finding that Defendant chose not to testify,
understanding that, while not optimal, this defense could still be raised. Whatever
67 Comm’r Report, at 5. 68 Id. 69 Id. 70 Id. at 5. 11 the relationship, Trial Counsel repeatedly made known to Defendant that self-
defense was available and provided Defendant with case law, including Guttierrez
v. State71 to further explain self-defense in Delaware.72 Defendant, however, refused
to admit his involvement in the shooting until after his conviction. 73
Even assuming the Commissioner had determined the relationship to be a poor
one, it cannot be said that Trial Counsel was ineffective because he failed to convince
his client to tell the truth or take the stand. The Court disagrees with Defendant’s
suggestion that Trial Counsel should have had a “come to Jesus” meeting with
Defendant during trial. 74 Was Trial Counsel expected to verbally persuade, coax, or
wrestle Defendant onto the stand to deliver a narrative he had repeatedly and
adamantly denied happened? And to the extent trust had anything to do with
Defendant’s decision to tell his attorney the truth, there can be no constitutional onus
on Trial Counsel to fully establish it.
Trial Counsel made strategic decisions based on what he knew at the time
despite Defendant’s failures to be truthful. 75 To second guess such strategies is
71 Guttierrez v. State, 842 A.2d 650 (Del. 2004). 72 Comm’r Report, at 13-14. 73 Id. at 14. (“Defendant was ‘pretty adamant’ that ‘he was not present at the crime scene’ for most of the representation. However, as trial approached, [Defendant] did finally admit to Trial Counsel that ‘he was there [at the crime scene] but didn’t shoot anybody.’”). Defendant’s Appendix to Post-Hearing Memorandum for Amended Motion for Postconviction Relief, D.I. 125, at A782-83. 74 D.I. 131, at 5. 75 See Strickland, 466 U.S. at 691 (“The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are 12 improper.76 Trial Counsel presented what supportive evidence he could, requested
and received a jury instruction on self-defense, and argued self-defense during his
closing argument at trial.77 The jury was therefore free to consider and reject a self-
defense claim. Thus, this Court agrees and adopts the Commissioner’s findings that
Trial Counsel was not ineffective as it relates to pursuing a self-defense argument,
nor did the Commissioner mischaracterize the attorney-client relationship.
B. Defendant’s Testimony Weighed Properly
Defendant suggests that the Commissioner improperly held Defendant’s
testimony to a beyond a reasonable doubt standard. 78 This Court disagrees. The
Report did not hold Defendant’s testimony to an improper standard but rather found
that Defendant lacked credibility when recounting his interaction with counsel, his
own actions during representation, and the reasons for such.
In order to succeed on his self-defense claim, Defendant says he had to testify
at trial. And he now complains Trial Counsel’s inaction prevented him from taking
the stand. More specifically, Defendant argues that Trial Counsel failed to file a
usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.”). 76 Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”). 77 Comm’r Report, at 14-15. 78 D.I. 131, at 8. 13 D.R.E. 609 Motion79 to obtain a definitive ruling from the trial judge before
Defendant elected not to testify. Consequently, he decided not to testify “because
he thought if the jury heard about his 2004 drug dealing conviction, they would think
he was guilty because they thought he was a felon.”80 And that because Trial
Counsel could not conclusively advise him as to the admissibility of the 2004
conviction, he was denied the opportunity to pursue a self-defense claim. He further
suggests that this unresolved D.R.E. 609 issue was the sole reason he elected not to
take the stand.
The Commissioner appropriately rejected this claim.
First, the Commissioner noted that Defendant’s claim of self-defense was
remarkably similar to what the prosecution had established at trial.81 Second, the
record did not support Defendant’s testimony that he did not receive communication
from Trial Counsel regarding a self-defense justification. 82 Third, nothing
corroborated Defendant’s hearing testimony. 83 Fourth, Defendant never offered
testimony during the evidentiary hearing that Moore had actually attempted to fire
his gun,84 making the firing pin evidence far less compelling. The Report did not
hold Defendant’s testimony to a beyond a reasonable doubt standard; it merely
79 Id. at 22. 80 D.I. 124, at 13. 81 Comm’r Report, at 11. 82 See id. at 13. 83 Id. at 14. 84 Id. 14 highlighted the many ways the Commissioner found Defendant’s testimony to lack
credibility in the first instance.
C. Knowledge of Firing Pin Evidence Not Misstated
Defendant now only challenges the Commissioner’s findings as to the firing
pin evidence, specifically about when Trial Counsel knew that it was available to
support a self-defense claim. Before addressing the specific objection, it is
noteworthy to elaborate on the firearm/toolmark evidence generally as it speaks to
broader arguments made in this Rule 61 motion.
Defendant initially argued Trial Counsel failed to adequately challenge two
aspects of the State’s ballistics evidence offered at trial through its expert, Rone.
These challenges had two parts relating to two weapons—the murder weapon and
the revolver found on the victim. We know that Defendant presented two alternative
defenses to the jury: he was not the shooter but if he was, the shooting was justified
as self-defense. Both theories were argued to the jury. The evidence as to both
weapons—as presented at trial—was critical to each defense.
Defendant maintained that he was not the shooter. As to this defense, we
know that the murder weapon, the 9mm Smith & Wesson (9mm), was found on the
Delaware Memorial Bridge and linked to the five cartridge casings at the scene of
the crime. But the two spent bullets (i.e., the actual projectiles recovered in the
victim) were mutilated and State’s expert Rone could not state the exact caliber of
15 the two recovered bullets due to their damaged condition. 85 He did, however, opine
that the two bullets were in the same “class” of family of ammunition that included
9mm, .380, and .357 calibers.86
Yet Rone’s testimony only went so far as he could not conclude that the bullets
recovered from the victim’s body were fired from the 9mm handgun, conceding he
could not, due to their condition, link them to any gun. As such, Trial Counsel’s
strategy was to use this evidence to argue, as he did, that there was no evidence that
Defendant had actually possessed or fired the 9mm handgun and that of the at least
four separate DNA samples recovered from the gun, none matched Defendant. 87
Defendant first claimed in his Rule 61 motion that Trial Counsel could have done
more.
He attacked Trial Counsel’s failure to challenge Rone by presenting an expert
report from Frederick M. Wentling (“Wentling”), a Firearm and Tool Mark
Examiner88 who opined that 1) the bullets recovered from the victim were most
likely .38, and therefore could not have been fired from a 9mm; 2) that 9mm bullets
are normally metal jacketed but the projectiles recovered from the victim were not;
and 3) that the bullets from the victim had been discharged from a heavily worn or
85 Comm’r Report, at 8; D.I. 109, at A412. 86 Comm’r Report, at 8. 87 Id. at 10. 88 Id. at 9. 16 oversized barrel, a trait not displayed by the recovered 9mm. 89 In sum, this expert
opined the bullets recovered during the autopsy were not fired from the 9mm.
Except we know now from Defendant that they were.
Though the proposed expert evidence could have helped challenge Rone’s
testimony at trial, it collapses entirely in light of Defendant’s belated version
presented at the evidentiary hearing when he admitted for the first time that “he
pulled out his own gun and shot Moore…and attempted to toss the gun off the
Delaware Memorial Bridge after removing the magazine from the gun.” 90 The
Commissioner was correct in finding that any attack regarding Rone’s ballistic
conclusions were rendered moot once Defendant testified and presented a new
theory as to why Trial Counsel was ineffective. 91
This leads us to the remaining challenge as to firearm evidence that relates not
to the murder weapon, but rather to the revolver found between Moore’s thighs.
Here, Defendant shifts from the “I’m not the shooter” theory to the newly fortified
self-defense theory. He asserts that Trial Counsel should have elicited testimony
from Rone or presented his own firing pin evidence that the revolver found on the
victim had at some point in its life misfired three times.92
89 Comm’r Report, at 9. 90 Id. at 12. 91 Id. at 11-12. 92 D.I. 108, at 17. 17 Yet Defendant’s admission that he used the 9mm to shoot Moore succinctly
invalidates the first portion of his own expert’s opinion (that excludes the 9mm as
the murder weapon) thereby undermining the reliability of the remaining aspects of
Wentling’s conclusions, including that of the firing pin evidence. Defendant cannot
pick and choose the portions of the report that are favorable to him. This leaves us
with Rone’s findings.
Unfortunately, Rone did not testify at the Commissioner’s evidentiary hearing
to determine what he would have said at trial had he been cross-examined as to the
firing pin evidence. In the absence of his testimony, the most that can be said about
the firing pin evidence in his report is a mention that the revolver had “indentations
on their primers.”93 More importantly, a handwritten notation next to this finding
reads “tried to fire?” with the words “indentations” and “primers” underlined.94
When Trial Counsel was asked if he knew about the firing pin evidence at trial, he
testified he could not recall but acknowledged that the handwriting appeared to be
his.95 He further conceded that evidence establishing that the revolver had
previously misfired would have helped bolster a self-defense claim.
Defendant claims the Commissioner misstates the record about when Trial
Counsel knew about the firing pin marks, giving it too little a mention in the Report’s
93 D.I. 131, at 7. 94 Id. 95 D.I. 124, at 14. 18 footnote.96 Deserving of weightier consideration, Defendant claims that because
Trial Counsel was in possession of Rone’s report—in accord with his testimony—
he either knew about the marks and failed to elicit testimony or did not know about
the marks even though the report was provided to him well in advance of trial; either
scenario he claims establishes ineffective assistance of counsel.97
For purposes of this Strickland examination, the Court will first presume
without finding that it was deficient performance to not further challenge Rone to
establish that the firing pin evidence was available to support a self-defense claim.
But prejudice cannot be established because that evidence only goes so far.
As to the revolver found on Moore, the most that can be established from
Wentling’s report is that one of the cartridges displayed a light firing pin mark, and
a second cartridge displayed two light indent firing pin marks; noted also in Rone’s
report.98 According to this defense expert, these marks evidenced that someone had
at some point in time attempted to fire the handgun three times without actually
discharging a projectile.99 Though this evidence might support a theory that Moore
96 Comm’r Report, at 15 n. 31 (“Based on his testimony during the evidentiary hearing, it is unclear if Trial Counsel was aware of the firing pin mark evidence at the time of the trial. Trial Counsel testified that he could not recall, but that “if I had, I certainly would have brough it up….’ In any event, three is no doubt that Trial Counsel did not argue it to the jury.”). 97 See D.I. 131, at 7-8. 98 Comm’r Report, at 9. 99 Id. 19 attempted to fire the weapon during his confrontation with Defendant, Wentling
could not opine as to when or why the weapon obtained those markings.100
While Defendant exhorts otherwise, the firing pin evidence does not come
from a smoking gun. Though perhaps somewhat helpful, this evidence was at best
inconclusive as to the timing of when the firing impressions on the unfired handgun
were made. Moreover, Defendant’s adamant stance that he “was there [at the crime
scene] but didn’t shoot anybody,” 101 hamstrung Trial Counsel’s self-defense
argument and he was left to argue reasonable doubt—that no direct evidence existed
to connect the found 9mm weapon to Defendant.
The Court agrees with the Commissioner that Defendant’s obstinacy
prevented the development of a more complete self-defense claim. Assuming Rone
would have concurred with Wentling, the Court can hardly find that prejudice in the
form of a reasonable probability of a different verdict derives from Trial Counsel’s
failure to elicit this testimony from Rone.
D. Insufficient Demonstration of Strickland Prejudice, a Different Result at Trial
To further advance his self-defense theory, Defendant argues that whether a
reasonable probability of a different result existed includes not just consideration of
better use of the firing pin evidence, but also the evidence as a whole, which should
100 Comm’r Report, at 9. 101 Id. at 14. 20 have included his own testimony.102 The Commissioner properly laid out the
Strickland standard’s definition of a reasonable probability of a different result. That
is a “probability sufficient to undermine confidence in the outcome.” 103
It is true that Trial Counsel was able to elicit testimony from Riley that Moore
made statements about shooting or fighting, and believed Moore was going to get a
gun before meeting Defendant. That a revolver was found on Moore certainly
corroborates this testimony. But even if Trial Counsel had made better use of the
firing pin evidence, it remained limited as it lacked any reference to when the
revolver may have misfired. Thus, Defendant’s testimony of what happened on the
night in question was essential to a self-defense argument, as Trial Counsel
recognized and had communicated to Defendant.104 Yet, Defendant elected not to
heed Trial Counsel’s advice and claimed that it was Trial Counsel’s fault for not
obtaining a D.R.E 609 ruling. And now, faults the Commissioner’s conclusions that
there was no prejudice by Trial Counsel’s failure to file a D.R.E. 609 motion to
exclude Defendant’s 2004 drug conviction.105 He argues that filing of the motion
would have likely excluded the conviction such that Defendant would have
testified.106 This Court disagrees.
102 D.I. 131, at 10. 103 Neal v. State, 80 A.3d 935, 942 (Del. 2013) (internal quotations and citations omitted). 104 Comm’r Report, at 16. 105 D.I. 131, at 10. 106 Id. 21 Had Defendant elected to testify, Trial Counsel would have conferred with the
State to reach an agreement on the prior conviction. 107 If forced to seek a ruling
from the Court, and the ruling was unfavorable, he would have argued for a limiting
instruction to address the D.R.E 609 impeachment evidence, if needed. 108 Though
the filing of a motion in limine may have been the preferred or best practice, the
question is whether Trial Counsel’s representation amounted to incompetence under
prevailing professional norms, not whether it deviated from best practices or
common customs.109 It did not.
Under Rule 609, Defendant’s ten-year old felony conviction 110 provided the
Court with the discretion to weigh the conviction’s probative value against its
potential prejudicial effect.111 In other words, there was no guarantee of exclusion.
So even if the deficiency had been cured and Trial Counsel had filed a Rule 609
motion to exclude Defendant’s conviction, Defendant assumes 1) the Court would
have ruled in his favor and 2) that Defendant would then have elected to take the
stand and 3) that he would have testified unequivocally to shooting Moore. And
107 See D.I. 125, at A785. 108 Id. at 786. 109 See Strickland v. Washington, 466 U.S. 668, 688 (1984) (“The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.”). 110 D.R.E. 609(b). 111 State v. Hunter, 1994 WL 682618, at *3 (Del. Super. Oct. 21, 1994) (citing Williams v. State, 494 A.2d 1237 (Del. 1985)). 22 even assuming twelve jurors would have accepted his testimony as truth to yield a
different outcome, these assumptions require supposition and speculation.
First, there is no guarantee that the ruling would have been favorable to
Defendant. Defendant supposes the Court would have ruled his conviction
inadmissible. With this assumption, he says that then and only then would he have
considered testifying. Even if the Court had ruled in his favor, we would need to
further accept through speculation that he would not only have taken the stand, but
that he would have then relayed to the jury that which he gave only post-
conviction—he did shoot Moore.
The Commissioner’s Report reflects that Defendant had long held the position
that he did not shoot Moore; in fact, up until trial began Defendant consistently told
Trial Counsel that he was not even present at the scene.112 It was only shortly before
trial that Defendant admitted he was present.113 Though there is evidence in the
record that Defendant had been planning to testify in his defense, in a letter dated
October 13, 2014, Trial Counsel advised Defendant of what he should consider prior
to deciding to take the stand.114 Notably absent from the letter was that Defendant
112 Comm’r Report, at 14. 113 Id. 114 Id. at 18. 23 had a prior felony conviction. 115 Despite this, Defendant later changed his mind and
decided not to testify.
Nothing in the record indicates Defendant was concerned about his prior
conviction before this postconviction appeal. Finally, it is also notable that
Defendant did not make his final decision on whether he would testify until after he
had seen the evidence that the State had put forth in its case-in-chief.116 And at
sentencing, he told the Court (and Moore’s family) that he hoped the true shooter
would one day be found.117 The Court finds it highly unlikely that even if
Defendant’s prior conviction had been ruled inadmissible prior to trial, that
Defendant would have experienced a change of heart or mind and suddenly admitted
to Trial Counsel that he shot Moore.
Defendant made his election not to testify. Trial Counsel did no more than
respect the decision. Even assuming that Trial Counsel should have requested an in
limine ruling, failure to do so does not lead to a reasonable probability of a different
outcome. Therefore, the Court finds that Defendant suffered no prejudice by Trial
Counsel’s failure to file a D.R.E 609 motion to exclude Defendant’s 2004 drug
conviction.
115 Comm’r Report, at 18. 116 Id. 117 See Sentencing Transcript 2/20/2015, at A714 (During Defendant’s allocution he stated “I do feel like I’ve been done unjustly, that I’m not the person who committed this heinous crime….I want to prove to [Moore’s family] that…I’m not the person who did this….it’s still someone out there…that’s the person who committed this crime.”). 24 V. CONCLUSION
For the foregoing reasons, the Court finds that Defendant fails to meet his
burden to demonstrate objective unreasonableness and prejudice as required under
Strickland. After careful consideration and de novo review, the Court accepts and
ADOPTS, in whole, the Commissioner’s Report and Recommendation for the
reasons stated above.118 Defendant’s Appeal from the Commissioner’s Finding of
Fact and Recommendation is DENIED.
/s/ Vivian L. Medinilla Vivian L. Medinilla Judge
oc: Prothonotary cc: Defendant Department of Justice Patrick Collins, Esq.
118 See DEL. SUPER. CT. CRIM. R. 62(a)(5)(iv) (“A judge may accept, reject, or modify, in whole or in part, the findings of fact or recommendations made by the Commissioner.”). 25