State v. Kellam

• Court: Superior Court of Delaware
• Decided: May 22, 2024
• Docket: 1506014357
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) ) ID No.: 1506014357 v. ) ) ) STEVEN KELLAM, ) ) Defendant. )

Submitted: April 8, 2024 Decided: May 22, 2024

MEMORANDUM OPINION AND ORDER

Upon Defendant’s Motion for Postconviction Relief (R-1) GRANTED IN PART AND DENIED IN PART

Kathryn Garrison, Esquire, Deputy Attorney General, Department of Justice, 13 The Circle, Georgetown, DE 19947; Attorney for State of Delaware.

Zachary A. George, Esquire, Hudson Jones Jaywork & Fisher, LLC, 225 South State Street, Dover, DE 19901; Attorney for Defendant Steven Kellam.

JONES, J. Procedural Background

On June 22, 2015, an indictment against Steven Kellam (“Mr. Kellam” or

“Petitioner”) was returned by the Grand Jury. Count 1 alleged Criminal

Racketeering.1 Count 2 alleged Conspiracy to Commit Racketeering. 2 It was

alleged that Mr. Kellam participated in a criminal enterprise through a "pattern

of racketeering activity." The "pattern of racketeering activity" was outlined in

five sub-paragraphs to Count 1. In the indictment, the State relied upon five

predicate events to establish a pattern:

(1) the January 13, 2014 murders of Cletis Nelson and William Hopkins;

(2) the May 18, 2014 home invasion of Isaiah Phillips;

(3) the August 22, 2014 home invasion of Ashley Moore;

(4) the December 11, 2014 home invasion of Milton Lofland; and

(5) the December 14, 2014 home invasion of Azel Foster.

The original indictment also included independent charges that corresponded to

all the alleged predicate events.

An Amended Indictment was filed on September 1, 2017; a second

Amended Indictment was filed on September 15, 2017; a third Amended

1 11 Del. C. § 1503(a). 2 11 Del. C. § 1503(d). 2 Indictment was filed on September 19, 2017; and a corrected version of the third

Amended Indictment was filed on September 21,2017. Mr. Kellam went to trial

on the third Amended Indictment.

Each Amended Indictment was described as exactly that: an amended

indictment. They were no re-indictments. There was no subsequent indictment

presented to the Grand Jury. Only one True Bill was returned by the Grand Jury

and that was the original indictment dated June 22, 2015.

Beginning with the first amended indictment, and for every subsequent

indictment, including the indictment on which Petitioner proceeded to trial, the

language in Count 1, Criminal Racketeering was modified. Instead of alleging

five predicate events serving as the basis for "pattern of racketeering activity,"

these indictments alleged only three predicate events:

(1) the January 13, 2014 murders of Cletis Nelson and William Hopkins;

(2) the December 11, 2014 home invasion of Milton Lofland; and

(3) the December 14, 2014 home invasion of Azel Foster.

3 Additionally, the subsequent indictments eliminated the actual criminal charges

which resulted from the two predicate events that were deleted: the events of May

18, 2014 and August 22, 2014. 3

Prior to trial, on February 23, 2016, Trial Counsel filed a Motion to Suppress

challenging the validity of a search warrant to intercept telephone

communications. The State filed its Answer to the Motion to Suppress on March

18, 2016. Mr. Kellam filed his Response on March 31, 2016. Because of a

recusal by the trial court judge, a visiting judge considered the Motion and

denied it on July 6, 2016.

Prior to trial, and also on February 23, 2016, Trial Counsel filed a Motion to

Sever the murder charges from the other charges. The State filed its Answer to the

Motion to Sever on March 18, 2016. Mr. Kellam filed his Response on March

31, 2016. The Court held oral argument on November 23, 2016 and denied the

Motion from the bench that same day.

At the close of Mr. Kellam's trial, the judge instructed the jury on the elements

of all the charges. When instructing the jury on the elements of felony murder, the

3 In the original indictment, those charges were listed as Counts 27-40 (pertaining to the home invasion of Isiah Phillips on May 18, 2014) and Counts 41-46 (pertaining to the home invasion of Ashley Moore on August 22, 2014). 4 jury was charged with the following statement of law: "in order to find the defendant

guilty of murder in the first degree, you must find ... the person's death occurred in

the course of or in furtherance of the defendant's commission of a felony."

A prayer conference was held prior to the administration of the jury

instructions. The discussion shows that all parties were aware of and concerned

with the distinctions between Mr. Kellam being charged as a principal tried for

his own conduct and as an accomplice being held accountable for the conduct

of his co-defendants. The parties and the trial court discussed the accomplice

liability instructions of 11 Del. C. § 271, et seq, but none present, neither at the

prayer conference nor in the time allotted for revision after, noticed the absence

of a 11 Del. C. § 274 Chance 4 instruction on different degrees of the offenses.

As Mr. Kellam was charged on a theory of accomplice liability, the judge

gave the jury an 11 Del. C. § 271 accomplice liability instruction. Because the

State relied heavily on testimony of individuals who had taken plea deals in

association with their involvement in the charged incidents, the judge also gave

the jury an accomplice testimony instruction.

4 Chance v. State, 685 A.2d 351 (Del. 1996). 5 The trial judge did not give the jury an 11 Del. C. § 274 Chance

instruction on the individualized consideration of Kellam's culpability for his

own mental state and his own accountability for aggravating factors. General

mens rea requirements were brought up as the charges were listed, but unlike

the specific accomplice testimony and accomplice liability instructions, there

was no specific discussion of the § 274 additional requirements for offenses

with different degrees and involving two or more persons. While § 274

incorporates § 271 by reference, the reverse is not true; thus, § 274 is not

incorporated by reference.

On September 25, 2017, after a jury trial, Mr. Kellam was convicted of 38

criminal offenses, including one count of Racketeering, two counts of First Degree

Murder, three counts of Home Invasion, two counts of First Degree Robbery, three

counts of Second Degree Conspiracy, one count of First Degree Attempted Robbery,

one count of Third Degree Assault, one count of Second Degree Assault, one count

of Wearing a Disguise during the Commission of a Felony, and 23 counts of

Possession of a Firearm During the Commission of a Felony. On March 23, 2018 he

6 was sentenced to two life sentences plus 769 years at Level 5.5 On June 13, 2019,

his conviction was upheld by the Delaware Supreme Court on direct appeal.

On August 28, 2019, Mr. Kellam filed a timely pro se Rule 61 Petition and

Request for Appointment of Counsel. On October 15, 2021, Postconviction Counsel,

having been appointed, filed an Amended Rule 61 Petition. The Petition asserted

five claims: one claim of lack of jurisdiction (defective indictment); three claims of

ineffective assistance of trial counsel (“Trial Counsel”); and one claim of cumulative

error. Trial Counsel filed an affidavit (the “Trial Counsel Affidavit”) on January 12,

2022. The State filed its Response on March 4, 2022. Mr. Kellam filed his Reply on

October 31, 2022.

On October 31, 2922, Mr. Kellam also filed a motion to further amend the

Petition, together with the proposed Amendment (the Amended Rule 61 Petition, as

further amended, the “Petition”). He added new claims: that Trial Counsel was

ineffective, both at trial and on direct appeal, for failing to object to (1) an erroneous

felony murder jury instruction under Ray v. State,6 and (2) the absence of a Chance7

5 A chart is attached as Exhibit A hereto summarizing the Counts in the Indictment, the Offenses charged of which Mr. Kellam was convicted, the number of years of Level 5 incarceration given for each, and, where appropriate, additional comments. 6 Ray v. State, 280 A.3d 627 (Del. 2022). 7 Chance v. State, 685 A.2d 351 (Del. 1996).

7 instruction under 11 Del. C. § 274 with respect to felony murder. The Superior Court

granted the motion on February 9, 2023 and accepted the additional claims. The

State filed its Response on April 3, 2023. Mr. Kellam filed his Reply on May 17,

2023, in which he expanded his argument to include a claim that Trial Counsel

also should have requested § 274 Chance instructions not just for the felony

murder charge, but also for the robbery, assault, and home invasion charges. On

September 26, 2023, the State filed a Corrected Response.

On September 25, 2023 I required Trial Counsel to submit a supplemental

affidavit (the “Supplemental Trial Counsel Affidavit”) addressing the claims in the

Amended Rule 61 Petition, within sixty days. Trial Counsel filed his Supplemental

Trial Counsel Affidavit on November 16, 2023. However, in the Supplemental Trial

Counsel Affidavit, Trial Counsel did not address the expanded claims in Mr.

Kellam’s May 17, 2023 Reply with respect to the lack of § 274 Chance instructions

not just for the felony murder charges, but also for the robbery, assault, and

home invasion charges.

The Superior Court set June 22, 2023 as the date for oral argument in this case.

However, in preparing for oral argument, it discovered a conflict of interest.

Although on July 10, 2023 the parties filed a Waiver of Potential Conflict of Interest,

8 signed under oath by Petitioner, the Superior Court entered an Opinion on July 10,

2023, in which the Judge recused himself.

The case was reassigned to me. I held oral argument on Monday, September

25, 2023. At oral argument, I asked counsel to address the impact of vacating the

two felony murder convictions, specifically which other convictions must also be

vacated, and whether the Rule 61 Petition was ripe for adjudication. After oral

argument, I asked counsel to file written post oral argument briefs. The State filed its

Supplement After Oral Argument on January 22, 2024. Mr. Kellam filed Petitioner’s

Post Oral Argument Written Submission on February 29, 2024.

On March 7, 2024 I requested that Trial Counsel file a Second Supplemental

Trial Counsel Affidavit. He did so on April 8, 2024. On April 10, 2024 I advised the

parties that, although no additional briefing was necessary, either party could file

additional material responding to the Second Supplemental Trial Counsel Affidavit

by May 10, 2024. No party did so.

This is my decision on the Petition.

Ripeness

I asked counsel at oral argument to address whether the Rule 61 Petition is ripe

for adjudication at this time if the two felony murder convictions and the related

PFDCF convictions are vacated, given the Level V time remaining to be served on 9 the remaining unrelated convictions. Mr. Kellam was sentenced to a total of 769 years

at Level V plus two life sentences. If the two life sentences are vacated, 150 years of

Level V time for the related PFDCF convictions would also be vacated. However,

this still leaves a total of 619 years at level V to be served on the unrelated convictions.

It is unlikely that Mr. Kellam will ever serve out those sentences. Mr. Kellam argues

that his Rule 61 Petition is ripe for adjudication given that the remaining unrelated

convictions are subject to pardon or parole, making it uncertain whether he will serve

out those sentences. The State argues that this is a highly unlikely scenario, and thus

the Rule 61 Petition does not present an “actual controversy” and is not ripe for

adjudication.

Our Supreme Court, in affirming the Superior Court’s denial of a defendant’s

motion for correction of sentence, has held “that the issue [defendant] raises

regarding his sentence on the weapon offenses does not appear to be ripe for

consideration in light of [his] four life sentences without parole.” 8 In a subsequent

decision in that case, the Superior Court stated:

As the Delaware Supreme Court already noted in a prior motion filed by Defendant seeking a correction of his sentence, Defendant's issues regarding his sentences on the weapons offenses does not appear to be ripe for consideration in light of the fact that he is serving life sentences without parole. Defendant must first serve his life sentences before he 8 Govan v. State, 832 A. 2d 1251 (Table) (Del. 2003). 10 begins serving the sentences on the weapon convictions. Because Defendant is unlikely to ever serve those sentences, he does not appear to present an “actual controversy.” Delaware courts are not required to expend judicial resources to answer questions that have no significant current impact.9 Two other 2010 cases are in accord. In a Superior Court case, defendant moved for

postconviction relief after a jury convicted him, inter alia, of two counts of murder

and he was sentenced to two life sentences plus additional time for other offenses.

In denying the motion, the Court stated:

Defendant's motion should be summarily dismissed because his issue regarding his life sentence on the Attempted First Degree Murder conviction is not ripe for consideration. Defendant must first serve his life sentence for First Degree Murder, without probation or parole or any other reduction, before he will begin to serve his life sentence on the Attempted First Degree Murder conviction. Defendant does not challenge his life sentence, without probation or parole, on his First Degree Murder conviction. In addition, Defendant must serve an additional 86 years on the Second Degree Murder, conspiracy and weapons convictions. Because Defendant must first serve his life sentence without probation, parole or any other reduction for his First Degree Murder conviction, it is unlikely he will ever serve any of the other remaining sentences. Thus, Defendant does not appear to present an “actual controversy” at the present time. Delaware courts are not required to expend judicial resources to answer questions that have no significant current impact. 10 In a Supreme Court case affirming a decision of the Superior Court denying

defendant’s motion for correction of illegal sentence, the Court stated:

9 Govan v. State, 2010 WL 3707416, at *1 (Del. Super. Aug. 31 2010) (Comm’s Order). 10 State v. Twyman, 2010 WL 4261921 (Del. Super. Oct. 19, 2010). 11 Equally meritless is Marvel’s second claim that the start date on his life sentence is erroneous. Marvel must serve the remainder of his life in prison. There is no indication that the start date of his sentence, erroneous or not, has any “significant current impact” on him or presents any “actual controversy” ripe for consideration by this Court.

Finally, in a recent Superior court case, a jury found defendant guilty of

several rape and other sexual offenses. He was sentenced to seven life sentences.

The Superior Court denied his second motion for postconviction relief, stating:

Defendant cannot demonstrate prejudice under Strickland – a reasonable probability of a different result at trial - from counsel's failure to object to the State's omission of the tolling provision in the Indictment. Even if counsel successfully objected to those counts, the same objection would not have applied to Counts V-XXI, and the Defendant was sentenced to seven life sentences without the possibility of release for the Rape First Degree convictions, plus more than eighty years of incarceration on the remaining convictions. Because Defendant is unlikely to serve out the seven life sentences, his claim does not present an “actual controversy.” 11

If I vacate the two felony murder convictions and the related PFDCF

convictions, Mr. Kellam is unlikely to serve out the amount of Level V time

remaining on the unrelated convictions. At first blush, therefore, it would appear that

his Rule 61 claims as to the felony murder convictions and the related gun charges

are not ripe for adjudication. However, unlike the two felony murder convictions,

which require imprisonment for the remainder of a person’s natural life ”without

11 State v. Hearne, 2023 WL 2980324 (Del. Super. April 17, 2023). 12 benefit of probation or parole or any other reduction,” 12 Mr. Kellam has the benefit

of probation, parole, or reduction with respect to the remaining unrelated

convictions. In my view, the key factor in analyzing ripeness is whether the

remaining convictions have the “benefit of probation or parole or any other

reduction.” If they do, then the case is ripe for adjudication. If they do not, then the

case is not ripe for adjudication. Since in this case the remaining unrelated

convictions have the benefit of probation or parole, Mr. Kellam’s Rule 61 claims as

to the felony murder convictions are ripe for adjudication and I will consider them,

below.

The Grounds for Postconviction Relief

In his Amended Rule 61 Petition, Mr. Kellam states five grounds for relief:

(1) The trial court lacked jurisdiction because subsequent indictments made

material constructive changes to the charging document without presenting a

re-indictment to the grand jury and without a valid waiver;

(2) Trial Counsel was ineffective because of his failure to move for severance of

the murder charges from the other charges13 for the second time after changes

to the indictment, and appellate counsel was ineffective for failing to raise the

12 11 Del. C. § 4209(a) 13 Trial Counsel’s first motion to that effect was denied by the trial judge. 13 severance issue on direct appeal;

(3) Trial Counsel was ineffective because of his failure to move for recusal of the

trial judge with respect to the motion to sever, based on the trial judge’s prior

approval of a wiretap;

(4) Trial Counsel was ineffective because of his failure to introduce cellular data

evidence to impeach the testimony of a key State witness; and,

(5) Cumulative Error.

In his further Amended Rule 61 Petition, Mr. Kellam states one additional

ground:

(6) Trial Counsel was ineffective because of his failure to object to (a) erroneous

jury instructions regarding felony murder under Ray, and (b) the absence of a

Chance instruction on different degrees of felony murder under 11 Del. C. §

274.

In his May 17, 2023 Reply, Mr. Kellam expanded ground (6) to include the

absence of a Chance instruction under 11 Del. C. § 274 with respect to assault,

robbery, and home invasion.

Trial Counsel Affidavit, Supplemental Trial Counsel Affidavit, and Second Supplemental Trial Counsel Affidavit In his Trial Counsel Affidavit, Trial Counsel addressed the jurisdiction claim

and the ineffective assistance of counsel claims. 14 With respect to the argument that the trial court lacked jurisdiction because the

indictment upon which Mr. Kellam was tried was different than that indicted by the

grand jury, Trial Counsel explains how that resulted from certain groups of charges

being nolle prossed prior to trial. The indictment began with five incidents and the

trial was on only three of those incidents, including the murder. Trial Counsel

believes that this jurisdictional claim impliedly alleges that he was ineffective for

failing to move to dismiss the allegedly deficient indictment. Trial Counsel points

out that a pattern of racketeering activity is defined by statute as two or more

incidents constituting racketeering activity. As the State whittled down its case

prior to trial by jettisoning two of the five alleged incidents, Trial Counsel

considered whether the case still qualified as a racketeering case. He concluded

that it did still qualify, because three incidents remained in which the grand jury

found probable cause and indicted. Therefore, he concluded the Racketeering

counts were still valid and did not move to dismiss them.

With respect to the severance claim, Trial Counsel made a motion at trial

to sever the murder counts from the other incidents in the indictment, because he

thought grouping five incidents together, including a double homicide, was

patently unfair and made it impossible for Mr. Kellam to get a fair trial, because

jurors would find it extremely difficult to compartmentalize the evidence 15 separately as to each incident. The Court denied this motion. He did not believe

that he had a good faith basis to relitigate the motion after two of the five groups

of charges were nolle prossed. The essential problem with the motion to sever

was the Racketeering charges. Since the grand jury approved Racketeering

charges, the State had the ability to argue that all the charges needed to be tried

together so that it could prove there was an enterprise committing racketeering

activity. That argument would have prevailed even if he had relitigated the severance

motion. With respect to not raising the severance issue on appeal, as an experienced

appellate lawyer Trial Counsel did not think the severance issue had any chance of

success, for the reasons stated above. Essentially, the racketeering counts trump the

"normal" concerns associated with severance.

With respect to the recusal claim, Trial Counsel saw no reason to move to

recuse the trial judge because he had approved the wiretap warrants. The trial

judge recused himself from considering motions to suppress the wiretaps he

himself had approved. However, as discussed above, the severance motion

presented a different set of legal issues, and reflected the State's arguments

without any comment on the contents of the wiretap petition. The court's

decision on severance essentially was that, since this was a racketeering case

alleging a pattern of criminal activity, severance was not appropriate. Since Trial 16 Counsel believed the trial judge made that decision based only on consideration

of the severance motion, the State's response, and the oral argument, he saw no

basis to move to recuse the trial judge. In any event, Trial Counsel’s motion to sever

was not to sever the case into five separate trials, but to sever the double Murder

First Degree incident from the rest of the incidents to ensure a fair trial. He conceded

that the racketeering statute defeats severance of all incidents. Because that was the

issue presented, Trial Counsel had no reason to think the trial judge should have

been recused.

With respect to Trial Counsel’s failure to introduce a witness’s cellphone

records to impeach his testimony, Trial Counsel states that he made a strategic

decision not to do so for three reasons. First, he already had much impeachment

evidence with which to work, including conflicting testimony from all the

witnesses. In his view, the witnesses lied to the police, testified in exchange for

a benefit, and incriminated Mr. Kellam to protect their own interests. Second, the

courtroom dynamics reflected that the interest and engagement of the jury over the

course of a three-week trial were flagging. The introduction of cellphone records and

confrontation of them would prolong the witness’ cross-examination without much

benefit. Third, Trial Counsel thought the cellphone evidence hurt more than it

17 helped. All the witnesses were using each other’s cellphones, and who was using

which phone at what time was very murky. Moreover, the State could have

rebutted this cellphone issue on redirect examination by refreshing the witness’

recollection with his prior statements.

In his Supplemental Trial Counsel Affidavit, Trial Counsel simply states that

he failed to notice and object to the outdated language in the felony murder jury

instruction.

With respect to the lack of a § 274 Chance instruction, Trial Counsel only

addresses the lack of a § 274 Chance for the felony murder charges. He states that

he intentionally did not request a § 274 instruction for three reasons. First, this

was an “all or nothing” case. If the jury found Mr. Kellam was the "general" in

charge of the "soldiers," as the State argued, he would be found guilty of felony

murder, home invasion, assault, and robbery. Trial Counsel did not, and still

does not, think the evidence proved that Mr. Kellam was in charge. His strategy

was to point out the glaring inconsistencies in the accomplices’ testimony. They

could not even agree on how and when Mr. Kellam supposedly gave the "kill order"

for the murders. Trial Counsel also argued that every key witness in the case was

getting a deal from the State in exchange for his or her testimony. Therefore, his

strategy was to obtain not guilty verdicts. Neither he nor Mr. Kellam wanted 18 compromise, lesser-included offense verdicts. Moreover, with respect to the

murders, Trial Counsel did not view Murder Second Degree verdicts as a win for

Mr. Kellam. With all the additional charges, such verdicts would have put Mr.

Kellam in prison for life anyway.

Second, Trial Counsel did not believe there was any factual basis to request

a § 274 Chance instruction. The only lesser-included offense of felony first degree

murder is felony second degree murder. That offense requires the State to prove

the killings were conducted with a negligent mental state. There was no basis in the

evidence to argue that. These were brutal murders. The trial judge would not have

given a lesser-included instruction if there was no factual basis in the record for it.

Third, Trial Counsel strongly believed that any resort to lesser-included

offenses would have undermined his credibility with the jury. The jurors had

watched hi m impeach witnesses with prior inconsistent statements and otherwise

attempt to demonstrate that the State did not prove that Mr. Kellam was the

mastermind. It therefore made no sense for Trial Counsel to stand before the jury

and argue that if they thought the State was correct to consider negligent felony

murder or lesser offenses of the other crimes.

In his Second Supplemental Trial Counsel Affidavit, Trial Counsel addresses

Mr. Kellam’s expanded argument that a § 274 Chance jury instruction should have 19 been given, not just for the felony murder charges, but also for the robbery, assault,

and home invasion charges. Trial Counsel reiterates that he did not request a §274

instruction and the associated lesser included offenses on the non-felony murder

charges for the same three reasons stated in his first Supplemental Affidavit. First,

the trial strategy was "all-or-nothing." Mr. Kellam was charged with so many

serious offenses that convictions for lesser-included offenses would likely have

imprisoned Mr. Kellam for the rest of his life. Second, there was no factual basis

in the evidence to request a § 274 instruction and the attendant lesser-included

offenses. Third, Trial Counsel did not want to compromise his credibility with

the jury. The strategy was to convince the jury that there was reasonable doubt

that Mr. Kellam was a "general" in charge of his "soldiers." Trial Counsel did

not want to have to address lesser offenses as an alternative.

The Home Invasions were not dividable into degrees because they were based

on predicate crimes of Robbery and Assault, where mental state is not a factor. As

to the aggravating factor of a firearm, it is unreasonable to think that Mr. Kellam was

an accomplice but was not responsible for the firearms used. It makes no sense based

on the facts of the three home invasions and the accompanying crimes. Either the

jury was going to believe Mr. Kellam was the mastermind controlling the others or

they were not. Lesser included offenses made no sense in this trial. 20 Moreover, even if § 274 and lesser included instructions carried the day

on one or even two of the home invasions, and if Mr. Kellam was convicted of

lesser included offenses on the homicides, he still faced decades in prison if

convicted. There is no scenario in which the jury would have found Mr. Kellam

not guilty of some form of homicide and guilty of only lesser included offenses

of the other crimes. The positions of the state and defense were too diametrically

opposed. The jury would either adopt the State's theory or not. Based on the

evidence, Trial Counsel states that he had no factual basis to request lesser

included offenses even if he thought it was a good idea, which he did not.

Trial Counsel states that there was ample room for reasonable doubt in Mr.

Kellam's case. Every major witness testified in exchange for a deal, and every

major witness had lied to the police, usually multiple times. The strategy adopted

by Mr. Kellam was to impeach those witnesses and argue to the jury that the

“general soldier” relationship was unsupported by the evidence. Even if there

was some slight factual basis for lesser included offenses, Trial Counsel would

not have requested those instructions.

Finally, Trial Counsel addresses Postconviction Counsel’s statement that

Trial Counsel wrote a letter to Mr. Kellam stating that, "subject to change," Trial

Counsel planned to appeal the lack of an Allen instruction. Although Trial 21 Counsel did consider it, he decided against it, mainly for the reasons stated in

his two Affidavits. Moreover, he knew that the claim would have been subject

to “plain error” review, the most onerous standard. Ultimately, Trial Counsel

decided that it would make a more appropriate postconviction claim under Rule

61.

Procedural Bars

I first address the four procedural bars of Rule 61. 14 If a procedural bar exists,

as a general rule I will not address the merits of the postconviction claim. 15 A Rule

61 Motion can be barred for time limitations, successive motions, failure to raise

claims below, or former adjudication. 16

First, a motion for postconviction relief exceeds time limitations if it is filed

more than one year after the conviction becomes final.17 In this case, Mr. Kellam’s

conviction became final for purposes of Rule 61 when the Delaware Supreme Court

issued a mandate or order finally determining the case on direct review; i.e., June

13, 2019.18 Mr. Kellam filed the Pro Se Petition on August 28, 2019, well within

14 Ayers v. State, 802 A.2d 278, 281 (Del.2002) (citing Younger v. State, 580 A.2d 552, 554 (Del. 1990)). 15 Bradley v. State, 135 A.3d 748 (Del. 2016); State v. Page, 2009 WL 1141738, at*13 (Del. Super. April 28, 2009), aff’d 994 A.2d 745 (Del. 2010). 16 Super. Ct. Crim. R. 61(i). 17 Super. Ct. Crim. R. 61(i)(1). 18 Super. Ct. Crim. R. 61(m)(2). 22 the one-year period. Consequently, the Amended Petition filed by Postconviction

Counsel o n October 15, 2021 a n d t h e f u r t h e r A m e n d e d P e t i t i o n f i l e d by

P o s t c o n v i c t i o n C o u n s e l on October 31, 2022 are also timely, even though

t h e y w e r e filed more than a year after Mr. Kellam’s convictions became final.

"Rule 61's time limit applies only to the initial filing, and ... Rule 61 grants

Superior Court judges discretion to permit defendants to amend their motions when

justice so requires." 19 Therefore, consideration of the Motion is not barred by the

one-year limitation.

Second, second or subsequent motions for postconviction relief are not

permitted unless certain conditions are satisfied. 20 Since this is Mr. Kellam’s first

petition for postconviction relief, consideration of the Motion is not barred by this

provision.

Third, grounds for relief “not asserted in the proceedings leading to the

judgment of conviction”21 or on direct appeal are procedurally barred. This procedural

bar also applies “even when ineffective assistance of counsel is asserted, unless

the defendant successfully demonstrates that counsel was in fact ineffective

19 Ploof v. State, 75 A.3d 811, 821 (Del. 2013), as corrected (Aug. 15, 2013) (citations omitted). 20 Super. Ct. Crim. R. 61(i)(2). 21 Super. Ct. Crim. R. 61(i)(3). 23 and that ineffectiveness prejudiced his rights." 22 It is well-settled Delaware law

that, as collateral claims, ineffective assistance of counsel claims are properly raised

for the first time in postconviction proceedings.23 Most of Mr. Kellam’s claims are

grounded in ineffective assistance of counsel. Thus, those claims are not barred by

this provision.

The State argues that Mr. Kellam failed to raise his claim about the indictments

and their effect on jurisdiction claim prior to or during trial, or on direct appeal, and

it is therefore procedurally barred. To establish cause sufficient to overcome the

procedural default bar of Rule 61(i)(3)(A), Kellam must show that an external

impediment prevented him from raising the claim either at trial or on direct appeal. 24

In order to meet the second prong of Rule 6l(i)(3)(B), Kellam must demonstrate actual

prejudice resulting from the alleged and previously unasserted error. 25 Kellam has alleged

neither a cause for his default, nor prejudice therefrom. Although I understand the State’s

argument under Rule 61(i)(3), the jurisdictional issue is fundamental under the exceptions

22 Wils on v. State, 900 A.2d 102 (Table), 2006 WL 1291369, at *2 (Del. May 9, 2006) (citing Gattis v. State, 697 A.2d 1174 (Del. 1997)). 23 State v. Schofield, 2019 WL 103862, at *2 (Del. Super. January 3, 2019); Thelemarque v. State, 2016 WL 556631, at *3 (Del. Feb. 11, 2016) (“[T]his Court will not review claims of ineffective assistance of counsel for the first time on direct appeal.”); Watson v. State, 2013 WL 5745708, at *2 (Del. Oct. 21, 2013) (“It is well-settled that this Court will not consider a claim of ineffective assistance that is raised for the first time in a direct appeal.”). 24 Outten v. State, 720 A.2d 547, 556 (Del. 1998); Younger v. State, 580 A.2d at 554. 25 Younger, 580 A.2d at 555-56. 24 of Rule 61(i)(5) and I will consider it both procedurally and on the merits, below.

Fourth, 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.26 One could argue that

the severance motion claim was previously adjudicated when the Court denied Trial

Counsel’s motion to sever. However, since Mr. Kellam argues that Trial Counsel

should have made a second motion to sever, and since that claim sounds in ineffective

assistance of counsel, I will consider it on the merits, below.

Finally, none of the four procedural bars apply either to a claim that the Court

lacked jurisdiction or to a claim that pleads with particularity that new evidence exists

that creates a strong inference of actual innocence,27 or that a new retroactively

applied rule of constitutional law renders the conviction invalid.28 Mr. Kellam

attempts to overcome the Rule 61(i)(3) procedural bar (see discussion, above) by

claiming the amendments to the indictment deprived the Court of jurisdiction,

triggering the exception of Rule 61(i)(5). The State argues that this claim fails

because an indictment defect, such as is alleged here, does not deprive a court of

26 Super. Ct. Crim. R. 61(i)(4). 27 Super. Ct. Crim. R. 61(i)(5). 28 Super. Ct. Crim. R. 61(d)(2)(i) and (ii). 25 jurisdiction. 29 Although I understand the State’s argument, I am going to consider the

indictment/jurisdiction claim on the merits, below.

Legal Standard

Mr. Kellam brings one claim of lack of jurisdiction, four claims of ineffective

assistance of counsel, and a sixth claim of the cumulative effect of those errors. The

four ineffective assistance of counsel claims are assessed under the two-part standard

established in Strickland v. Washington, 30 as applied in Delaware. 31 Under

Strickland, Mr. Kellam must show that (1) Trial Counsel’s representation “fell below

an objective standard of reasonableness” (the “performance prong”); and (2) the

“deficient performance prejudiced [his] defense” (the “prejudice prong”).32 In

considering the performance prong, the United States Supreme Court was mindful

that “[S]trategic choices made after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable.”33 Strickland requires an

objective analysis, making every effort “to eliminate the distorting effects of

hindsight” and to “indulge a strong presumption that counsel’s conduct falls within

29 See United States v. Cotton, 535 U.S. 625, 631 (2002) (holding a defective indictment does not deprive a court of jurisdiction); Grimes v. State, 2020 WL 4200132, at *3 (Del. July 21, 2020) (finding the Superior Court was not divested of jurisdiction by amended indictment). 30 466 U.S. 668 (1984). 31 Albury v. State, 551 A.2d 53 (Del. 1988). 32 Strickland, 466 U.S. at 687. 33 Id. at 690. 26 the wide range of reasonable professional assistance.” 34 “[S]trategic choices about

which lines of defense to pursue are owed deference commensurate with the

reasonableness of the professional judgments on which they are based.” 35

As to the performance prong, Mr. Kellam must demonstrate that Trial

Counsel’s failure to (1) move to sever at trial and to raise the severance issue on

direct appeal, (2) move for recusal of the trial Judge, (3) introduce certain cellular

data evidence, and (4) object to an erroneous felony murder jury instruction, all as

discussed more fully below, were unreasonable decisions.

As to the prejudice prong, Mr. Kellam must demonstrate that there exists a

reasonable probability that, but for Trial Counsel’s errors, the outcome of the trial

would have been different.36 Even if Trial Counsel’s performance was

professionally unreasonable, it would not warrant setting aside the judgment of

conviction if the error had no effect on the judgment. 37 A showing of prejudice

“requires more than a showing of theoretical possibility that the outcome was

affected.”38

34 Id. at 689. 35 Id. at 681. 36 Albury, at 687; Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003); Wright v. State, 671 A.2d 1353, 1356 (Del. 1996). 37 Strickland, at 691. 38 Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992). 27 Strickland teaches that there is no reason for a court deciding an ineffective

assistance claim to approach the inquiry in a particular order, or even to address both

prongs of the inquiry if the defendant makes an insufficient showing on one. In

particular, a court need not determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant because of the alleged

deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, that course should be followed.39 In every case, the

court should be concerned with whether, despite the strong presumption of

reliability, the result of the particular proceeding is unreliable because of a

breakdown in the adversarial process that our system counts on to produce just

results.40

The Constitution does not require that the performance of Trial and

Appellate Counsel be error free to satisfy the effectiveness standard.41 The

performance inquiry turns on whether counsel's assistance was reasonable under all

the circumstances. 42 Evidence of isolated poor strategy, inexperience, or bad tactics

does not necessarily establish ineffective assistance. 43

39 Strickland, at 697. 40 Id. at 696. 41 McMann v. Richardson, 397 U.S. 759, 770-71 (1970). 42 Wong v. Belmontes, 558 U.S. 15, 17 (2009); Strickland, 466 U.S. at 688. 43 Bellmore v. State, 602 N.E. 2d 111, 123 (Ind. 1992) rehearing den. 1993. 28 Effective appellate counsel is expected to confine the appeal to presenting

those claims, which in his professional judgment, appear to be the strongest.44 "A

defendant can only show that his appellate counsel ineffectively represented him

where the attorney omits issues that are clearly stronger than those the attorney

presented." 45 To determine prejudice, the court analyzes the issue on the

merits. 46

Analysis

The Indictments and Jurisdiction

The grand jury clause of the United States Constitution 47 (the “Grand Jury

Clause”) and the Delaware Constitution 48 guarantee Mr. Kellam the right to have

his case presented to a Grand Jury before the State may proceed to trial against

him. The notice clause of the United States Constitution 49 (the “Notice Clause”)

44 Davila v. Davis, 580 U.S. 1158 (2017) ("Effective appellate counsel should not raise every nonfrivolous argument on appeal, but rather only those arguments most likely to succeed." (Citing Smith v. Murray, 477 U.S. 527, 536 (1986); Jones v. Barnes, 463 U.S. 745, 751-753 (1983))). 45 Ploof, 75 A.3d at 832. See Davila ("Declining to raise a claim on appeal, therefore, is not deficient performance unless that claim was plainly stronger than those actually presented to the appellate court."). 46 Id. 47 See U.S. Const., amend. V ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."). 48 Del. Const. art. I, § 8. 49 See U.S. Const., amend. VI (“[T]he accused shall enjoy the right … to be informed of the nature and cause of the accusation …”). 29 and the Delaware Constitution 50 guarantee Mr. Kellam’s right to be on notice of

the charges against him.

With respect to Federal law, the Grand Jury Clause prohibits constructive

amendments and prejudicial variances to an indictment. A violation of the Grand

Jury Clause can occur when the indictment is amended by the State, the Court,

or constructively in such a way that there is a substantial likelihood that the trial

jury may have convicted the defendant for an offense that is different from that

alleged in the grand jury indictment.51 "Constructive amendments and variances

are related issues that stem from the Fifth Amendment's requirement that ‘no

person shall be held to answer for a capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand Jury.’” 52 “A constructive amendment

results when the terms of an indictment being, in effect, altered by the

50 Del. Const. art. I , § 7. 51 See United States v. Miller, 471 U.S. 130, 142-45 (1985) (reaffirming the idea that an indictment is unconstitutionally amended when it is so altered as to charge a different offense from that found by the grand jury); United States v. Daraio, 445 F.3d 253, 259-60 (3d Cir. 2006) (noting that a constructive amendment, which federal courts have found violates the Fifth Amendment, occurs "when, in the absence of a formal amendment, the evidence and jury instructions at trial modify essential terms of the charged offense in such a way that there is a substantial likelihood that the jury may have convicted the defendant for an offense differing from the offense the indictment returned by the grand jury actually charged" (footnote omitted) (citing Miller, 471 U.S. at 140)). 52 United States v. Rios, 830 F.3d 403,427 (Ct. App. 6th Cir. July 21, 2016) reh. den. Sept. 27, 2016. 30 presentation of evidence and jury instructions which modify essential elements of

the offense charged such that there is a substantial likelihood that the defendant

may have been convicted of an offense other than the one charged in the

indictment.”53 “A variance occurs when the charging terms [of the indictment]

are unchanged, but the evidence at trial proves facts materially different from

those alleged in the indictment.”54

“There are two types of constructive amendment: first, when there is a

complex of facts presented at trial different from those set forth in the charging

instrument, and second, where the crime charged in the indictment was substantially

altered at trial so that it was impossible to know whether the Grand Jury would have

indicted for the crime actually proved.”55

With respect to Delaware law, this Court has stated:

Article I section 8 of the Constitution of the State of Delaware prohibits the State from initiating criminal proceedings by information when a person is arrested for an indictable offense. The Delaware Constitution thus protects citizens from unfounded State prosecutions by requiring the State to prove to a jury of the defendant's peers, a Grand Jury, that the charges are justified.

At its common law roots, an indictment could only be amended by the Grand Jury that had returned the True Bill. However, common

53 Id. 54 Id.; Stirone v. United States, 361 U.S. 212 (1960). 55 United States v. Davis, 854 F.3d 601 (Ct. App. 9th Cir. Apr. 14, 2017). 31 law evolved to allow judicial amendments so long as those amendments did not affect the substance of the indictment. Thus, Superior Court Criminal Rule 7(e) states the court may permit an indictment or an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.56

Mr. Kellam argues that, since his rights under both the Grand Jury Clause and

the Notice Clause under both Federal and Delaware law were violated, the trial court

lacked jurisdiction, and Mr. Kellam is entitled to a new trial. 57 Mr. Kellam argues

that he was tried on an indictment that was different than the one presented to the

Grand Jury. Trial proceeded without a waiver by Mr. Kellam of subsequent

indictments. Subsequent indictments in the case, which were never presented to a

Grand Jury, made material, constructive, structural changes to the charging

document and Mr. Kellam’s substantial constitutional rights were prejudiced.

The State counters that the changes to the Racketeering charge in the

Corrected Amended Indictment amount to neither an unconstitutional

constructive amendment or prejudicial variance under Federal law or an

improper substantive amendment under Delaware law. It also argues that

56 Ligon v. State, 170 A.3d 147 (Del. 2017) (TABLE). 57 Mr. Kellam appears to be claiming constitutional violations with respect to both Counts 1 and 2 of the original indictment, Criminal Racketeering and Conspiracy to Commit Racketeering, but the State entered a nolle prosequi for the conspiracy count prior to trial. Thus, I will only address the claim about the racketeering conviction. 32 Kellam's claims are procedurally barred under Rule 61 (see discussion, above)

and are, in any case, meritless.

The Racketeering charge required the State to prove that Mr. Kellam

participated in the affairs of an enterprise through a “pattern of racketeering

activity.” A "pattern of racketeering activity" is defined as two or more incidents

of conduct that constitute racketeering activity, are related to the affairs of the

enterprise, and are not so closely related to each other and connected in time that

government must prove that the predicates acts are related and pose a threat of

continued criminal activity. 58 This same approach to Racketeering charges is

reflected on the Federal level.59

As discussed above, in the only indictment ever presented to the Grand

Jury, the "pattern of racketeering activity" was alleged to be comprised of two or

more of five predicate events outlined in five enumerated sub-paragraphs. By the

time the case proceeded to trial, the five predicate events had been reduced to

three predicate events.

Mr. Kellam argues that he was convicted of Racketeering based upon some

combination of only three of the five predicate events submitted to the Grand Jury,

58 Lloyd v. State, 249 A.3d 768 (Del. 2021). 59 See United States v. Brandao, 539 F.3d 44, 54 (Ct. App. 1 s t Cir. 2008). 33 but it is impossible to tell if the Grand Jury would have returned a True Bill if the

original indictment only identified three, instead of five, predicate events. Because

there is no way of knowing which of the five predicate events the Grand Jury found

to exist, and because there is no way of knowing how many of the five predicate

events the Grand Jury found to exist, it follows a fortiori that there is no way o f

k n o w i n g if Mr. Kellam was convicted of the same Racketeering charge for which

he was indicted. Indeed, Mr. Kellam argues that it is substantially likely that he

was convicted of a crime for which he was not indicted. Mr. Kellam stresses that he

was not tried for any of the underlying charges that served as the basis for the

predicate offenses that were later removed.

However, the United States Supreme Court has never applied the Grand Jury

Clause to the States.60 Thus, to the extent Mr. Kellam is arguing the changes to the

Racketeering charge violated the Grand Jury Clause, his claim is not cognizable.

"[T]he legality of an amendment to an indictment is primarily a matter of state

60 See Johnson v. State, 711 A.2d 18, 23 (Del. 1998) ("The United States Supreme Court has never held ... that the Fifth Amendment concepts of a 'grand jury' are applicable to the states by virtue of the Fourteenth Amendment incorporation doctrine." (citing Hurtado v. California, 110 U.S. 516, 538 (1884); Alexander v. La, 405 U.S. 625, 635 (1972) (Douglas, J. concurring))); accord Dixon v. May, 2021 WL 1226438, at *6 (D. Del. Mar. 31, 2021). 34 law." 61

Even if the Grand Jury Clause did apply in Delaware, the removal from the

Racketeering charge in the Corrected Amended Indictment of two of the five

predicate events was not an unconstitutional amendment. The United States

Supreme Court has held that "where an indictment charges ... the commission of

one offense in several ways, the withdrawal from the jury's consideration of ... one

alleged method of committing it does not constitute a forbidden amendment of the

indictment."62 In keeping with that holding, Federal courts have consistently found

that changes after indictment to Racketeering and other conspiracy charges that

remove predicate events or overt acts, or that otherwise narrow the conspiracy, do

not violate the Fifth Amendment. 63

61 United States ex. rel Wojtycha v. Hopkins, 517 F.2d 420, 425 (3d Cir. 1975), quoted in Dixon, 2021 WL 1226438, at *6; accord Dixon v. State, 2015 WL 2165387, at *2 (May 7, 2015); Mott v. State, 9 A.3d 464,465 (Del. 2010); Johnson, 711 A.2d at 23. 62 Miller, 471 U.S. at 145 (citing Salinger v. United States, 272 U.S. 542, 548-49 (1926)). See also id. at 140 (finding no Fifth Amendment violation when "[defendant's] complaint [wa]s not that the indictment failed to charge the offense for which he was convicted, but that the indictment charged more than was necessary"). Cf Turner v. United States, 396 U.S. 398, 420 (1970) ("[W]hen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, ... the verdict stands if the evidence is sufficient with respect to any one of the acts charged."). 63 See, e.g., United States v. Hornick, 491 F. Appx 277, 286-87 (3d Cir. 2012) (finding court's narrowing of conspiracy's time frame in jury instructions did not constructively amend indictment); United States v. Weinstock, 1998 WL 344047, at *6 (6th Cir. May 27, 1998) ("(I]f the evidence offered at trial proves a narrower scheme than the one alleged in the indictment, then the variance is not fatal." (internal quotations and citations omitted)); United States v. Zauber, 857 F.2d 137, 150-51 (3d Cir. 1988) (finding no unconstitutional amendment to reduced-count indictment because the remaining counts sufficiently alleged a racketeering conspiracy); United 35 The United States Supreme Court has held that the Notice Clause applies to

the States through the Fourteenth Amendment. 64 An amended indictment would

violate the Sixth Amendment if it did not contain all the elements of the charged

offense or fairly inform the defendant of the charge against which he must defend.65

To the extent Mr. Kellam is claiming the amendment to the racketeering

charge violated his right to fair notice, 66 this claim is unavailing. The amended

indictment contained all the necessary elements of Racketeering and fairly

informed M r . Kellam of the charge.

A Racketeering conviction requires proof of three elements: "( 1) that the

defendant was associated with an enterprise; (2) that the defendant conducted

States v. Ledbetter, 2015 WL 5117979, at *6 (S.D. Ohio Sept. 1, 2015) (noting predicate acts of racketeering are surplusage, not essential elements of the charged conspiracy, thus, changes to them do not support constructive amendment or variance claims). Cf United States v. Rios, 830 F.3d 403, 427 (6th Cir. 2016) (noting that the overt act element of a racketeering conspiracy charge may be satisfied by an overt act not specified in the indictment without violating the Fifth Amendment's prohibition on constructive amendments); United States v. Pumphrey, 831 F.2d 307, 309 (U.S. App. D.C. 1987) ("[E]xcess allegations in an indictment that do not change the basic nature of the offense charged need not be proven and should be treated as mere surplusage."). 64 Dixon, 2021 WL 1226438, at *6 (noting that the Sixth Amendment fair notice requirement applies to the States through the Fourteenth Amendment (citing In re Oliver, 333 U.S. 257 (1948)); accord Crawford v. Pennsylvania, 714 F. Appx 177, 179 (3d Cir. 2017). 65 See Crawford, 714 F. Appx at 179 (noting that to meet the Sixth Amendment's fair notice requirement, an indictment must contain the elements of the offense charged and provide the defendant with notice of the charges against which he must defend). 66 Cf Daraio, 445 F.3d at 261 ("[T]he concerns raised by a variance argument are the fairness of the trial and the protection of the defendant's right to notice of the charges against her and her opportunity to be heard."). 36 the enterprise through a pattern of racketeering activity ... ; and (3) that the

defendant's conduct or participation in the pattern of racketeering was

intentional." 67 The Delaware Criminal Code defines a "pattern of racketeering

activity" as "two or more incidents of conduct" that "constitute racketeering

activity," that "are related to the affairs of the enterprise," and that do not

constitute a single event (the "predicate-events"). 68 "Racketeering activity"

includes, inter alia, any activity constituting a felony under the Delaware Code. 69

To prove Racketeering, in addition to intent, the State must prove two

necessary elements: the existence of an enterprise and the presence of a pattern of

racketeering beyond a reasonable doubt. 70 Here, the indictment approved by the

grand jury alleged that Kellam "while being . . . associated with an unnamed

organization, an enterprise as defined by Title11 § 1502(3), did knowingly conduct

or participate in the conduct of the affairs of the enterprise, through a pattern of

racketeering activity," which "consisted of two or more" of five incidents of conduct

(the predicate events). The Corrected Amended Indictment submitted to the jury at

trial contained the same language, but only listed three predicate events.

67 White v. State, 243 A.3d 381,398 (Del. 2020) (citing 11 Del. C. § 1503). 68 11 Del. C. § 1502(5)a. 69 11 Del. C. § 1502(9)b 70 Stroik v. State, 671 A.2d 1335, 1340 (Del. 1996). 37 The fact that the version of the indictment submitted to the jury contained

fewer predicate offenses does not amount to a Sixth Amendment violation. The

original indictment and the amended indictments each alleged all the necessary

elements. And, even though the State dropped two of the predicate events from the

indictment submitted to the jury, both indictments clearly put Mr. Kellam on notice

that he was going to have to defend himself against the Racketeering charge, which

always included as predicate events the charges of which he was convicted. 71 A

defendant cannot show his substantial rights were prejudiced by the absence of

charges alleged against him in an original indictment.72 Moreover, "[t]he listing of

multiple means of committing a statutory offense is a recognized and accepted

practice."73 Accordingly, Mr. Kellam cannot show that the removal of two of the

71 See United States v. Schoenhut, 576 F.2d 1010, 1021-22 (3d Cir. 1978) ("A variance does not prejudice a defendant's substantial rights ... if the indictment sufficiently informs the defendant of the charges against him so that he may prepare his defense and not be misled or surprised at trial." quoted in Daraio, 445 F.3d at 262). 72 See Miller, 471 U.S. at 134-35 (finding no notice-related violation concerns from government's removal of part of indictment that alleged prior knowledge of burglary, noting "there can be no showing here that Miller was prejudicially surprised at trial by the absence of proof concerning his alleged complicity in the burglary"); Zauber, 857 A.2d at 151 (finding no Sixth Amendment violation when RICO case was tried on a 90-count indictment, which, by the time of trial had been reduced to six counts). 73 Richardson v. State, 673 A.2d 144, 146 (Del. 1996) (citing Griffin v. United States, 502 U.S. 46, 51 (1991)). Cf United States v. Conley, 92 F.3d 157, 163 (3d Cir. 1996) ("It is clear that when a jury returns a general verdict of guilty on a multi­ object conspiracy count, the conviction will stand over Fifth Amendment due process objections so long as there is sufficient evidence to support any one of the objects of the conspiracy." citing Griffin, 502 U.S. at 56-57)). 38 listed predicate events from the racketeering charge violated the Sixth Amendment.

Finally, the amended indictments do not violate Delaware law. Superior

Court Criminal Rule 7(e) permits amendment of an indictment "at any time before

verdict or finding if no additional or different offense is charged and if substantial

rights of the defendant are not prejudiced." The purpose of the rule is to give a

defendant: (1) notice of the charges against him so that he can prepare an adequate

defense; and (2) protection from double jeopardy.74 "[T]he principal test for

determining the appropriateness of an amendment under the Delaware

Constitution [focuses] on the extent to which the amendment substantively changes

the material elements of the crime alleged in the original indictment." 75 Thus, a

judge may amend an indictment as to matters of form, but not as to matters of

substance "as long as ' ... no new, additional or different charge is made thereby and

the accused will not otherwise suffer prejudice as to substantial rights."'76

Additionally, it is generally accepted that a court may permit amendment of the

indictment to charge a defendant with a lesser-included offense to an original

charge.77

74 Tingle v. State, 815 A.2d 349 (Del. 2003); accord Keller v. State, 425 A.2d 152, 155 (Del. 1981). 75 Coffield v. State, 794 A.2d 588, 592 (Del. 2002). 76 Keller, 425 A.2d at 155 (quoting State v. Blendt, 120 A.2d 321, 324 (Del. Super. 1956)). 77 See State v. Grossberg, 1998 WL 278391, at *1 (Del. Super. Ct. Apr. 13, 1998) ("Because a 39 This Court did not err in permitting the State to amend the indictment to

remove two of the five predicate events for Racketeering. The amendment did not

change the material elements of the charge, especially given that Delaware law

permits an indictment to list alternative means with respect to an element of a

crime.78 Moreover, as discussed above, the original indictment already placed Mr.

Kellam on notice that he would have to defend against the three remaining predicate

events, thus sufficiently enabling him to prepare a defense. 79 Mr. Kellam cannot

show the amendment violated Delaware law.80

I deny this claim.

lesser included offense is, by definition, composed exclusively of some, but not all, of the elements of the offense charged, it would never constitute a 'different' offense, and seldom an 'additional' offense within the meaning of Rule 7(e)." (quoting Virgin Islands v. Bedford, 671 F.2d 758, 765 (3rd Cir. 1982))); accord Rogers v. State, 2003 WL 22957024, at *2 (Del. Dec. 12, 2003) (finding Superior Court properly exercised discretion in permitting State to amend indictment to charge defendant with lesser-included offense of original charge). 78 See Richardson, 673 A.2d at 147 ("It was a historical practice and continues to remain a common practice to list in one count of an indictment alternative means with respect to an element of a crime."). 79 Cf Norwood v. State, 813 A.2d 1141 (Del. 2003) ("If the original indictment, when viewed with the amendment, is sufficiently certain and understandable to enable the defendant to prepare his defense, the defendant will not be prejudiced."). 80 Cf. Metelus v. State, 2018 WL 6523215, at *3 (Del. Dec. 10, 2018) (finding no abuse of discretion in allowing indictment to be amended when defendant did not argue that the amended indictment charged an additional or different offense or that her defense would have differed).

40 Ineffective Assistance of Counsel

Severance

Although Postconviction Counsel disclaims an attempt to relitigate the

Motion to Sever made by Trial Counsel at trial, he incorporates the Motion to

Sever, the Reply to Motion to Sever, and oral argument on the Motion to Sever

by reference in his argument. Mr. Kellam asserts that Trial Counsel was

ineffective fo r failure to move for severance a second time after the changes the

to the indictment resulting in fewer charges going to the jury.

To establish prejudice based upon an attorney's failure to seek severance,

Petitioner must show that a motion to sever would have been granted and that if the

charges had been tried separately the result would have been different. Prejudice

occurs if there is a reasonable probability that, but for counsel's deficient

performance, the outcome would have been different. A reasonable probability is

probability enough to undermine the outcome. 81

Under Superior Court Criminal Rule 8, a defendant may be indicted for

two or more offenses if the offenses are of the same or similar character or are

based on the same act or transaction or on two or more acts or transactions

81 State v. Woods, 2008 Wash. App. (Wash. Ct. App. May 12, 2008). 41 connected together or constituting parts of a common scheme or plan.

"The United States Supreme Court held that, when addressing the Federal 1

RICO statute, to prove a pattern of racketeering activity, the government must

show that the predicate acts are related to the enterprise and they amount to or

pose a threat of continued criminal activity." "Relatedness exists if the

racketeering acts 'have the same or similar purposes, results, participants, victims,

or other methods of commission, or otherwise are interrelated by distinguishing

characteristics and are not isolated events."' 82

Under Superior Court Criminal Rule 14, the Superior Court may grant a

motion for severance for separate trials if it appears that a defendant or the state is

prejudiced by a joinder of offenses … in an indictment.83 Delaware Courts have

identified prejudice arising from joinder where: (1) the jury may accumulate the

evidence of the various crimes charged and find guilt when, if considered

separately, it would not so find; (2) the jury may use the evidence of one of the

crimes to infer a general criminal disposition of the defendant in order to find

guilt of the other crime or crimes; and (3) the defendant may be subject to

82 Lloyd v. State, 249 A.3d 768 (Del. 2021) (citing H.J. Inc. v. Northwestern Bell Telephone Company, 492 U.S. 229 (1989)). 83 Lloyd v. State, 249 A.3d 768 (Del. 2021 ). See also Bates v. State, 386 A.2d 1139 (Del. 1978). 42 embarrassment or confusion if there is any different and separate defenses to the

different charges.84

Mr. Kellam argues that, although the trial court should have granted the

motion to sever in the first instance, it would have granted the motion to sever

after the indictment was changed so critically. At oral argument, Trial Counsel

argued that the murder charges should be tried separately from the remaining

charges in what was at the time an 81-count indictment. Trial counsel argued that

the jury could not reasonably be expected to compartmentalize the evidence. In

his view, it was impossible for the jury to hear evidence of multiple home

invasions and not impute guilt upon the separate and distinct homicides.

The trial court denied the motion when it was made, noting that Mr. Kellam

was charged with Racketeering, and that the State alleged he was the ringleader.

All the incidents together established that Mr. Kellam was the leader and that the

others were following his direction. Moreover, the Court pointed out, as part of the

Racketeering charge, the State was alleging a pattern of criminal activity.

Mr. Kellam argues that the trial court's analysis would have been different

once Counts 27 - 40 and Counts 41 - 46 were removed from the indictment. In

84 State v. McKay, 382 A.2d 260 (Del. Super. 1978). 43 those counts, the State alleged conduct related to the home invasions of Isiah

Phillips on May 18, 2014 and Ashley Moore on August 22, 2014. When they

were removed, only three home invasion events remained in the indictment. And

in only one of any of those events was someone killed. Indeed, in its closing

argument, the State attributed an unrelated motive to the murders than to the other

home invasions: retaliation for a fight that preceded the killings involving a man

named John Snead. Mr. Kellam argues that the application of the Getz v. State85

factors would have weighed against admissibility of prior bad acts evidence and

severance would have been granted.

Additionally, Mr. Kellam argues that appellate counsel was ineffective by

failing to raise the severance issue on direct appeal to the Delaware Supreme Court.

The Delaware Supreme Court has held that the same Strickland test applies to

claims of ineffective assistance of appellate counsel. 86 Petitioner must first show

that counsel was objectively unreasonable in failing to raise the issue of severance

on appeal. While the United States Supreme Court has recognized that appellate

counsel need not raise every non-frivolous claim on appeal (encouraging

litigants to select strong issues), it is possible to bring a Strickland claim based

85 538 A.2d 726 (Del. 1988). 86 Neal v. State, 80 A.3d 935 (Del. 2013)(citing Smith v. Robbins, 528 U.S. 259 (2000)). 44 on counsel's failure to raise a particular claim on appeal. Where an allegedly

ineffective counsel files a merits brief on appeal, the Petitioner on Rule 61 bears

the burden of showing that a particular non-frivolous issue was clearly stronger

than issues that counsel did present. Citing Neal, the Delaware Superior Court

has applied the Strickland test to claims of ineffective assistance of appellate

counsel brought before it in the context of a Rule 61 Motion for Postconviction

Relief. 87

Mr. Kellam argues that severance was a strong issue on appeal. As argued

to the trial court in the motion to sever, none of the home invasion victims

identified Petitioner as the perpetrator, Petitioner was not arrested during the

commission of any of these crimes, there was no confession, there were no

forensics, and the evidence of Petitioner's guilt came from alleged co-

conspirators testifying for favorable treatment.

Appellate counsel pursued only one issue on appeal: the denial of a motion

to exclude recorded wiretap statements allegedly made by Mr. Kellam (see

discussion, below). Appellate counsel argued that statements should have been

excluded pursuant to Delaware Rule of Evidence 404(b). Challenges to a trial

87 State v. Hunter, 2018 WL 2085006 (Del. Super. Apr. 25, 2018). 45 court's evidentiary rulings are only required to meet an abuse of discretion

standard. 88 Thus, that appeal was a long shot at best, argues Mr. Kellam, and

the severance motion was a stronger issue on appeal.

Had the issue of severance been pursued on appeal, Mr. Kellam believes it

might well have been granted. On appeal, the Delaware Supreme Court will

reverse the denial of a motion to sever when the defendant demonstrates a

reasonable probability that the joint trial caused substantial injustice. 89 Clearly,

Mr. Kellam argues, substantial injustice occurred here. Petitioner was convicted

on all counts of a sprawling indictment in which a multitude of offenses were

joined together under the guise of a “pattern of racketeering activity” in a

defective indictment. As argued in the trial court and perfected for appeal, Mr.

Kellam argues here that severance was entirely appropriate in this case.

The State counters that all the incidents were correctly tried together because

Mr. Kellam and his codefendants were involved in organized crime; their business

was to commit home invasions of suspected drug dealers to rob them of money and

drugs. In committing those home invasions, including the one that led to the two

deaths, the defendants engaged in a common scheme: Mr. Kellam would find a

88 Zebroski v. State, 715 A.2d 75 (Del. 1998). 89 Lloyd v. State, 249 A.3d 768 (Del 2021). 46 dealer and his location, direct others where to go, and provide them with guns. Mr.

Kellam’s assessment of the severance issue fails for one important reason:

severance was not appropriate because all the counts stemmed from incidents

related to the Racketeering charge. Indeed, in his Trial Counsel Affidavit, Trial

Counsel acknowledges that he had no good faith basis to raise the severance issue

because the Racketeering charge gave the State the ability to argue that all the

charges needed to be tried together in order to prove there was an enterprise

committing racketeering activity.

Here, all the charges stemming from the five (later, three) home invasions,

including the homicide charges, were part and parcel of the predicate events for

the Racketeering charge. Those events were integral to proving racketeering. Thus,

the charges stemming from each of the home invasions, including the homicide

charges, were inextricably intertwined with the Racketeering charge. "[W]hen an

offense charged in an indictment is inextricably intertwined with predicate

offenses, the charges should remain joined."90 In Taylor v. State, for example, the

Delaware Supreme Court found that the Superior Court had not abused its discretion

90 State v. Mack, 2021 WL 4848230, at *12 (Del. Super. Ct. Oct. 18, 2021) (citing Taylor v. State, 76 A.3d 791,801 (Del. 2013)). 47 for refusing to sever a gang participation charge from murder, attempted murder, and

additional felony charges. 91 The Court held that, because the evidence supporting

the charges was inextricably intertwined, it would have been admissible even if the

charges had been severed, and "the trial court acted well within its discretion in

denying severance."92

Whether Mr. Kellam raised the issue again prior to trial, after the State

dropped charges stemming from two of the predicate events from the indictment, or

on appeal, he needed to demonstrate that the predicate events were not related to

the criminal racketeering enterprise.93 He did not make that argument in his

motion to sever, nor does he appear to make a viable argument to that effect in

his postconviction motion. "Relatedness exists if the racketeering acts 'have the

same or similar purposes, results, participants, victims, or other methods of

commission, or otherwise are interrelated by distinguishing characteristics and

91 Taylor, 76 A.3d at 801. 92 Id. See also Phillips v. State, 154 A.3d 1146, 1159 (Del. 2017) (finding trial court did not abuse its discretion in denying motion to sever charges related to homicides from gang participation- related charges because the evidence in the indictment supporting the charges was inextricably intertwined). 93 See Mack, 2021 WL 4848230, at *1 (noting that when a racketeering charge is involved, predicate offenses are properly joined at trial if they have a "sufficient nexus" to the racketeering charge (citing Lloyd v. State, 249 A.3d 768, 776-77 (Del. 2021)). 48 are not isolated events."' 94

Mr. Kellam argues severance was appropriate because the evidence did not

tie him to the crimes. He also seems to assert that the homicides were not part of a

pattern of racketeering evidence 95 because the other two home invasions did not

result in homicides, and the primary motive for the homicides was revenge, not

robbery, as it had been for the other home invasions. But Mr. Kellam's arguments

ignore the fact that the indicted charges stemming from the three predicate events

that were submitted to the jury at trial were sufficiently related to the Racketeering

charge to make joinder of all the charges appropriate. And his assertion that none of

the evidence connected him to the crimes is belied by the record and, in any case,

arguments about weight to be given the evidence and credibility of the State's

witnesses are not relevant to assessing whether there was misjoinder of charges.96

The State alleged and presented evidence that each home invasion involved

Mr. Kellam; that Mr. Kellam and others would rob drug dealers; and that Mr. Kellam

94 Lloyd, 249 A.3d at 776-77 (quoting H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 240 (1989)). 95 See Lloyd, 249 A.3d at 776 ("[T]o prove a pattern of racketeering activity, the government must show that the predicate acts are related to the enterprise and they amount to or pose a threat of continued criminal activity."). 96 See Poon v. State, 880 A.2d 236, 238 (Del. 2005) ("[I]t is the sole province of the fact finder to determine witness credibility, resolve conflicts in testimony and draw any inferences from the proven facts."); Mack, 2021 WL 4848230, at *12 (noting that Mack's factual issue about whether the charges should be considered a pattern of racketeering activity was a jury decision). 49 supplied the guns and told the others who their target was and showed or told them

where to go. In addition, even though Mr. Kellam and the others might have wanted

retribution for the fight with Snead, they also chose to, and did, rob the victim

because he was a drug dealer. Importantly, others also shot at and wounded a victim

when they tried to rob him. Just because they happened to kill two victims during

the course of a home invasion and robbery does not mean that the event was not

related to their criminal enterprise. A renewed motion to sever those charges, or

an appeal of the denied motion, was not going to be successful.97 And neither Trial

Counsel nor Appellate Counsel were ineffective for failing to raise the issue again.98

97 See Mack, 2021 WL 4848230, at *11 (denying defendant's request to sever racketeering case into 39 separate trials when charges met the definition for relatedness, "namely, they [had] similar purposes, results, participants, and methods of commission," and recognizing the State's right to meet its burden of proving a pattern of racketeering activity). See also United States v. Irizarry, 341 F.3d 273, 290 (3d Cir. 2003) (holding that when all of the criminal conduct charged against the defendant constituted a series of related acts in furtherance of a commonly charged RICO enterprise, there was no misjoinder of separate, unrelated offenses); United States v. Eufrasio, 935 F.2d 553, 570 (3d Cir. 1991) (finding district court did not err in refusing to dismiss murder conspiracy charge that was a racketeering predicate; noting "[t]he government had the right to charge and prove every element constituting the RICO charges against [the defendant], ... even if proof of it revealed unsavory aspects of [his] criminal past to the jury"). 98 Cf Skinner v. State, 607 A.2d 1170, 1173 (Del.1992) (holding that decision that claim based on underlying substantive issue would not have succeeded precluded a showing of prejudice on claim of ineffective assistance of counsel regarding issue); Shelton v. State, 744 A.2d 465, 503 n.183 (Del. 2000) ("[T]he Sixth Amendment does not require counsel to pursue meritless arguments before a court."). 50 Recusal from Severance Motion

Mr. Kellam filed a Motion to Suppress challenging the validity of a search

warrant to intercept telephone communications. Because the trial court judge

had signed the ex parte wiretap warrant, he recused himself from deciding the

Motion to Suppress and the Motion was decided by a visiting judge. Mr. Kellam

argued that the signing of a warrant based upon probable cause could show a

disposition by the Court which would preclude the Court from fairly deciding

that issue anew, either on the Motion or during trial.

Now Mr. Kellam argues that Trial Counsel was ineffective for failing to

request the trial judge to recuse himself from considering his Motion to Sever.

Mr. Kellam further argues that he was denied a fair trial because the trial court

judge did not sua sponte recuse himself from hearing the Motion to Sever.

The Delaware Judge's Code of Judicial Conduct states that a judge should

disqualify himself or herself in a proceeding in which the judge's impartiality

might reasonably be questioned including but not limited to where the judge has

personal knowledge of disputed evidentiary facts concerning the proceeding. 99

The Court considers "whether, as a matter of subjective belief, the judge was

99 Delaware Judges Code of Judicial Conduct Rule 2.11. 51 satisfied that he or she could proceed to hear the case free of bias or prejudice

concerning a party." 100

Mr. Kellam argues that when the trial judge signed the ex parte wiretap

search warrant, which caused his recusal from considering the Motion to

Suppress, the trial judge also tainted his ability to fairly consider the Motion to

Sever. The facts that the trial judge learned in signing the warrant were relied

upon by the State and the trial judge in denying the Motion to Sever. Mr. Kellam

is offended that in such a serious case, the trial judge did not issue a written

opinion on the Severance Motion. The trial judge denied the motion from the

bench and marked "denied" on a judicial action form. From the bench, the trial

judge stated that this was a Racketeering case where the State alleged a pattern of

criminal activity.

Mr. Kellam argues that the trial judge's comments reflected the contents

of the application and affidavit supporting the interception of wire

communications which had been presented to the trial judge previously when the

ex parte wiretap was authorized. Indeed, the State referenced the wiretap

application and affidavit in its response to the trial judge. Mr. Kellam claims that this

Franklin v. State, 901 A.2d 119 (Del. 2006) (on appeal from the Superior Court in State v. 100

Franklin, 2005 WL 3193713 (Del. Super. Nov. 29, 2005)). 52 must have been heard favorably by a trial judge who had previously reviewed and

approved the wiretap application and affidavit.

The State argues that Mr. Kellam’s argument is based on the incorrect

premise that a judge who signs a warrant must later recuse himself from matters

affected by his finding of probable cause for the warrant. "Due process guarantees

'an absence of actual bias' on the part of a judge."101 To determine whether actual

bias is present, the United States Supreme Court has applied an objective

standard. 102 "Recusal is required when, objectively speaking, 'the probability

of actual bias on the part of the judge or decisionmaker is too high to be

constitutionally tolerable.’" 103 The Supreme Court has also recognized, however,

that the Due Process Clause of the Fourteenth Amendment establishes a

constitutional floor, and that "most questions concerning a judge's qualifications

to hear a case are not constitutional ones," 104 and are instead answered by state

statute, common law, and professional standards. 105 T he Court has never held

101 Williams v. Pennsylvania, 579 U.S. 1, 8 (2016) (quoting In re Murchison, 349 U.S. 133, 136

(1955)). 102 Id. 103 Rippo v. Baker, 137 S. Ct. 905,907 (2017) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975). 104 Bracy v. Gramley, 520 U.S. 899, 904 (1997) (citing Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 828 (1986)). 105 Id. 53 that due process requires a judge to recuse himself from presiding over a criminal

trial after finding there was probable cause to issue a warrant in the case. 106

Indeed, in Withrow v. Larkin, the United States Supreme Court noted:

Judges repeatedly issue arrest warrants on the basis that there is probable cause to believe that a crime has been committed and that the person named in the warrant has committed it. Judges also preside at preliminary hearings where they must decide whether the evidence is sufficient to hold a defendant for trial. Neither of these pretrial involvements has been thought to raise any constitutional barrier against the judge's presiding over the criminal trial and, if the trial is without a jury, against making the necessary determination of guilt or innocence. . . . We should also remember that it is not contrary to due process to allow judges and administrators who have had their initial decisions reversed on appeal to confront and decide the same questions a second time around.107

Mr. Kellam has not alleged any personal interest or bias on the part of the

judge, only that the judge should not have decided the motion to sever because he

found probable cause to issue the wiretap warrant and assigned a visiting judge to

decide the motion to suppress the warrant. On that basis, Kellam has not established

a due process violation.

106 See Powell v. Link, 2017 WL 7795393, at *6-7 (E.D. Pa. Nov. 16, 2017) (noting due process does not raise any constitutional barrier against judge's presiding over criminal trial after issuing arrest warrants (citation omitted)), rep.and recommendation adopted, 2018 WL 1071926 (E.D. Pa. Feb. 27, 2018), cert. of appealability denied, Powell v. Superintendent Graterford SCI,'.W 18 WL 11028198 at *l (3d Cir. Oct. 29, 2018). 107 421 U.S. 35, 56-57 (1975). 54 Nor can Mr. Kellam show the judge's recusal was warranted under State law.

With respect to the Delaware Judges' Code of Judicial Conduct Rule 2.11, the

Delaware Supreme Court has held that "the bias envisioned by [the Code of

Conduct] is not created merely because the trial judge has learned facts or made

adverse rulings during the course of a trial." 108 Moreover, "[t]o serve as a

disqualifying factor, the alleged bias ... 'must stem from an extrajudicial source and

result in an opinion on the merits on some basis other than what the judge learned

from his participation in the case."' 109

Typically, when a motion to recuse is filed, a judge must undertake a two-step

analysis: (1) "[t]he first step requires the judge to be subjectively satisfied that he or

she can proceed to hear the cause free of bias or prejudice," and (2) "the second step

requires the judge to examine objectively whether the circumstances require recusal

because of an appearance of bias sufficient to cause doubt as to the judge's

impartiality."110 As noted above, Mr. Kellam cannot show objective bias merely

108 Weber v. State, 547 A.3d 948, 952 (Del. 1988) (citing Steigler v. State, 277 A.2d 662, 668 (Del. 1971)). 109 Jackson v. State, 684 A.2d 745, 753 (Del. 1996) (quoting Los v. Los, 595 A.2d 381,384 (1991) (citing U.S. v. Grinnell Corp., 384 U.S. 563 (1966))). 110 Gattis v. State, 955 A.2d 1276, 1285 (Del. 2008). 55 because the judge learned facts about the case from the wiretap warrant. 111 H e

has presented no evidence to support a claim that the judge was subjectively biased

against him. Thus, the trial judge did not err in failing to sua sponte recuse himself

from deciding the severance motion, a motion to recuse the judge would not have

been successful, and trial counsel was not ineffective for failing to have filed such a

motion.112

I deny this claim. Cellular Data Evidence

One strategy of the defense at trial was to highlight inconsistencies in the

witnesses' testimony to the jury. In closing argument, Trial Counsel argued that the

witnesses were inconsistent, contradictory, and at times outright untruthful. He

111 See Steigler, 277 A.2d at 668 ("[T]be mere fact that a Judge has made some pretrial rulings against a given defendant is not in itself sufficient to require his disqualification."), quoted in Gattis, 955 A.2d at 1284; Jackson, 684 A.2d at 753 (“To require a judge to disqualify himself or herself from further participation in a case where the judge acts as a gatekeeper for the admissibility of evidence would impose an unreasonable and totally impracticable standard."). See also Liteky v. United States, 510 U.S. 540, 555-56 (1994) ("[O)pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible."). 112 See Hurst v. State, 2013 WL 85109) at *2 (Del. Jan. 7, 2013) (finding no plain error for judge not to sua sponte recuse himself from presiding over the trial simply because he approved the search warrant application); Powell, 2017 WL 7795393, at *6-7 (finding that alleging no personal interest by the judge beyond "a general disinclination to overturn his own ruling'' was inadequate to state a constitutional violation as a matter of law); Skinner, 607 A.2d at 1173; Shelton, 744 A.2d at 503 n.183. 56 argued that the witnesses testified to save themselves in exchange for plea deals offered

to them by the State. Trial Counsel also argued the lack of corroboration of the

witnesses’ testimony. The State acknowledged that the witnesses' testimony was

inconsistent on when and by whom the order to kill the murder victims was

given.

Mr. Kellam now argues that it was ineffective of Trial Counsel to fail to

introduce contradictory cell phone data evidence challenging this testimony.

Discovery materials provided to Trial Counsel by the State in advance of trial

included an AT&T Phone Mobility Usage Report for one of the key witnesses,

which arguably showed no communication between that witness and Mr. Kellam

regarding the kill order. Mr. Kellam argues that Trial Counsel should have called

an expert witness to testify that there was no such communication. Failure to

present this Report to contradict the testimony about the kill order, according to

Mr. Kellam, fell below an objective standard of reasonableness and, had the

evidence been presented, the outcome of trial would likely have been different

under the Strickland test.

This case was a battle of witness credibility. The witnesses provided different

renditions of facts related to the one thing that was not corroborated in the murders:

Mr. Kellam's involvement. Mr. Kellam argues that this evidence, which would have 57 contradicted the kill order testimony, should have been shown to the jury, and that

without the kill order testimony, the jury would not have convicted Mr. Kellam of

murder.

In his Trial Counsel Affidavit, Trial Counsel asserts that he had three strategic

reasons not to introduce the evidence from the cellphone records: (1) he had

plenty of other impeachment evidence to work with; (2) he felt the jury's interest

was flagging and he believed that confronting a witness about those records would

prolong an already long cross- examination without much benefit; and (3) he

thought the cellphone evidence would hurt more than it helped because people,

including Kellam, had been using other people's phones, and "the State would

have easily been able to rebut this phone issue on redirect by refreshing [the

witness’] recollection with his prior statements."

The State argues that Mr. Kellam can show neither that Trial Counsel's

decision was objectively unreasonable, nor that he was prejudiced thereby. First,

Mr. Kellam was convicted as an accomplice of two counts of first-degree felony

murder. Thus, it did not matter whether the State could prove that Mr. Kellam

gave the kill order; it was sufficient for the State to show that he acted as an

accomplice to the others in committing the home invasion that resulted in the

two deaths. The State argues that it presented significant evidence that that was 58 the case. Multiple witnesses testified that, among other things, Mr. Kellam

provided the guns, ordered the robbery, and instructed where it was to occur. Apart

from the "kill order" evidence, the State presented a strong case that Mr. Kellam

aided, counseled, or agreed to aid the others in the commission of the home

invasion, which foreseeably resulted in the two murders.113

Second, Trial Counsel’s reasons for not introducing the evidence were

strategic, and not objectively unreasonable. Trial Counsel is correct that he had

sufficient other impeachment evidence, and he correctly recognized that the phone

call impeachment evidence was not going to make a difference in the case.

I agree with the State that Trial Counsel’s reasons for not introducing this

evidence were strategic and not objectively unreasonable. Trial counsel was not

ineffective for failing to introduce the cellphone evidence.

113 See Hassan-El v. State, 911 A.2d 385, 394-95 (Del. 2006) ("[I]f the ‘accomplice' intended to commit the underlying felony, i.e., armed robbery, then he or she is also guilty of any 'consequential crime' that is committed, i.e., murder, as long as the consequential crime was a 'foreseeable consequence' of the armed robbery… (citing Claudio v. State, 585 A.2d 1278, 1281-82 (Del.1991); Hooks v. State, 416 A.2d 189, 197 (Del. 1980)); 11 Del. C. § 271 (providing a person is liable for the conduct of another when "intending to promote or facilitate the commission of the offense the person ... aids, counsels or agrees or attempts to aid the other person in planning or committing it"); A1431-33 (accomplice liability jury instruction). 59 Felony Murder Jury Instruction

Mr. Kellam next argues that Trial Counsel was ineffective by failing to object

to the felony murder instruction given to the jury. The trial judge erroneously defined

felony murder for the jury when he said: "in order to find the defendant guilty of

murder in the first degree, you must find... the person's death occurred in the course

of or in furtherance of the defendant's commission of a felony.”114 The "in

furtherance of” language applied by the trial court was from a pre-2004 version of

the statute. However, when Mr. Kellam went to trial, the felony murder statute had

been revised to omit the “in furtherance of” language. The felony murder statute

now reads: "a person is guilty of murder in the first degree when ... while

engaged in the commission of, or attempt to commit, or flight after committing

or attempting to commit any felony, the person recklessly causes the death of

another person." 115

In 2003, under the old “in furtherance of” language, the Delaware

Supreme Court held that “the felony murder statute 'not only requires that the murder

occur during the course of the felony but also that the murder occur to facilitate

114 The felony murder jury instruction language was repeated four times; in one instance it was incorrect and in three instances it was correct. This is of no consequence to me; the jury could have decided on the wrong language. 115 11 Del. C. § 636. 60 commission of the felony."' 116 In direct response to that case, the General Assembly

amended the felony murder statute in 2004 to remove the language that the Supreme

Court had interpreted as requiring the murder to have been committed to facilitate

the commission of the underlying felony.117

Mr. Kellam asserts that Trial Counsel’s failure to object to the erroneous

jury instruction at trial constitutes ineffective assistance of counsel under

Strickland. "The reasonableness of counsel's challenged conduct must be judged

on the facts of the particular case. A determination that defense counsel's

conduct was 'the result of reasonable professional judgment' or 'within the wide

range of professional competent assistant' will defeat an ineffective assistance

claim." 118 "A lawyer's decision to refrain from objecting to a faulty jury

instruction or requesting a clarifying one can be perfectly reasonable if it is the

product of reasonable professional judgment and strategic considerations." 119

The Delaware Supreme Court has said that "in evaluating the propriety of

a jury charge, the jury instructions must be viewed as a whole. A jury instruction

116 Chao v. State, 931 A.2d 1000, 1000 (Del. 2007) (citing State v. Williams, 818 A.2d 906, 913 (Del. 2003, amending 2002 decision). 117 Comer v. State, 977 A.2d 334, 338 (Del. 2009) (quoting 11 Del. C. § 636(a)(2)). 118 Ray v. State, 280 A.3d 627 (Del. 2022). 119 Id. 61 is not a ground for reversal if 'it is reasonably informative, not misleading and

does not undermine the jury's ability to intelligently perform its duty. Although a

party is not entitled to a particular jury instruction, a party does have the

unqualified right to have the jury instructed with a correct statement of the

substance of the law. An instruction which tracks the statutory language is

adequate to inform the jury."120

In Ray v. State, a recent Delaware Supreme Court decision, the Court held

that use of an erroneous felony-murder instruction that did not accurately state

the law, which counsel failed to object to or raise on appeal, merited

postconviction relief. 121 The facts of the Ray and Kellam cases are parallel in

several ways. Mr. Ray was convicted of felony murder, receiving a life sentence

plus twenty years. 122 Mr. Kellam was also convicted of felony murder and

received multiple life sentences. Mr. Ray directly appealed his conviction and

the denial of his first postconviction motion. 123 Mr. Ray's second appeal argued

an ineffective assistance of counsel claim on the grounds that his trial and

appellate counsel overlooked the fact that the felony murder jury instruction was

120 Lloyd v. State, 152 A.3d 1266 (Del. 2016). 121 Ray v. State, 280 A.3d at *3. 122 Id. at *2. 123 Id. 62 "obviously flawed" and did not accurately reflect the current law. 124 Mr. Kellam

raises a nearly identical claim here. The Ray jury instruction that was given at the

close of the trial included outdated felony murder elements requiring that the

murders occurred "in furtherance of the commission or attempted commission

of any felony." 125 This is precisely the same language, reflective of the outdated

statute and not the current statute, that was incorporated into Mr. Kellam's jury

instructions.

The Supreme Court in Ray identified the defining issue as whether it would

have reversed the conviction on direct appeal had it been apprised of the fact that

it

rested on a jury instruction that, in addition to being outdated and incorrect, referred to potential accomplice liability without defining that concept. The instruction also improperly cleared a new path to a finding that Ray was guilty of first-degree murder. ... [T]he instruction told the jury that Ray could be held responsible for first-degree felony murder even upon a finding that he had not caused [the victim’s] death if it determined that his “accomplice” had done so.126

124 Id. at *4. 125 Id. at *15. 126 Ray, 280 A.3d at 644-45.

63 Mr. Kellam argues that the language "in furtherance of" in the felony murder jury

instruction served to further emphasize his guilt by association with his

accomplices, and it strengthened the idea that he could be held responsible for the

crimes of his accomplices. This misdirection was not tempered by a § 274

instruction (see discussion, below).

The State argues that the Ray is distinguishable from Kellam on the jury

instruction issue. The Ray jury received an erroneous felony murder instruction

but no accomplice liability instructions, neither the § 271 accomplice liability

instruction nor the § 274 Chance instruction. In Ray, using the language "in

furtherance of" thus introduced a theory of accomplice liability that the State did

not argue or present evidence for. The Superior Court had denied the State's request

for an accomplice liability instruction under § 271 as lacking an evidentiary basis.

In Ray, therefore, the jury instruction contained language about the defendant’s

potential role as an accomplice without providing further context. In Kellam, on the

other hand, the Superior Court approved the State's accomplice liability theory and

instruction which, argues the State, puts the felony murder instruction in context.

Although Trial Counsel, as well as the State and the Superior Court, should have

noticed and requested removal of the outdated language from the felony murder

instruction, the language was not likely to have misled the jury or changed the result 64 of Kellam's trial. I n R a y , it was ultimately the addition of the incorrect accomplice

liability language to the felony murder jury instruction that convinced the Delaware

Supreme Court that the instruction prejudiced Mr. Ray's case. No such flaw existed

in Mr. Kellam's instruction, and thus M r . Kellam cannot show he was prejudiced

by one mention of the outdated language in his felony murder jury instruction.

As stated above, in his Supplemental Trial Counsel Affidavit, Trial Counsel

simply states that he failed to notice and object to the outdated language in the felony

murder jury instruction, and offers no further rationale for his failure to object to the

incorrect jury instruction at trial.

In my view, the defective felony murder instruction given in this case runs

afoul of Ray and falls within the rationale of our Supreme Court in that case. To use

the language of Ray, the instruction may have improperly cleared a new path for

the jury to find that Mr. Kellam was guilty of first degree felony murder. The

instruction told the jury that Mr. Kellam could be held responsible for first degree

felony murder even upon a finding that he had not caused the victims’ deaths if it

determined that his accomplices had done so. This allowed the jury to hold Mr.

Kellam responsible for the crimes of his accomplices.

Under the two prongs of Strickland, failure to object to this jury instruction

was objectively unreasonable, and it is possible that the outcome of the jury’s 65 verdict could have been different had the proper instruction been given.

I grant this claim. The two felony murder convictions are vacated. Those

convictions which are inextricably linked to the felony murder convictions must

also be vacated. I asked counsel at oral argument to address the impact of vacating

the two felony murder convictions, specifically which other convictions must also be

vacated and which ones survive. In my view, in addition to the vacation of the

murder conviction of Count 3, the three related convictions for Possession of a

Firearm during the Commission of a Felony (Counts 4, 5 and 6) must also be

vacated. Moreover, in addition to the vacation of the murder conviction of Count

8, the three related convictions for Possession of a Firearm during the

Commission of a Felony (Counts 9, 10 and 11) must also be vacated.

Failure to Request § 274 Chance Instruction (Degrees of Crime)

Mr. Kellam further argues that the absence of a § 274 Chance instruction

removed another guardrail on the road to conviction, prejudicing him, and that

he might not have been convicted of felony murder, assault, robbery, and home

invasion had the jury been properly instructed.

In Mr. Kellam's case, the § 271 instruction on its own did not adequately

66 instruct the jury on the individualized consideration required under § 274. 127 11

Del. C. § 274 provides that "when, pursuant to § 271 of this title, two or more

persons are criminally liable for an offense which is divided into degrees, each

person is guilty of an offense of such degree as is compatible with that person's

own culpable mental state and with that person's own accountability for an

aggravating fact or circumstance."128 It is undisputed that Mr. Kellam was charged

on a theory of accomplice liability and that as a matter of law felony murder, assault

and robbery are crimes of degrees. Consequently, the jury could have been

instructed specifically on the need to consider Mr. Kellam’s individualized mental

state and individual accountability.

Because Delaware does not distinguish between principal and accessories

under accomplice liability,129 there is a two-step analysis that the jury must make

in order to find a defendant guilty on a theory of accomplice liability where the

charged offense is one divided into degrees. 130 First, it must determine if the

defendant was an accomplice to a criminal offense.131 Second, it must determine

127 Johnson v. State, 711 A.2d 18, 30 (Del. 1998). 128 11 Del. C. § 274. 129 Allen v. State, 970 A.2d 203 (Del. 2009). 130 Id.; Johnson, 711 A.2d at 31. 131 Johnson, 711 A.2d at 31. 67 what degree of the offense the defendant committed, which requires an

individualized consideration of the defendant's mental state and culpability for

aggravating facts or circumstances. 132

Mr. Kellam argues that the jury instructions in his case omitted substantial

legal principles and as a result did not substantively comply with the Delaware

Superior Court rules. While an acceptable accomplice liability instruction was

given in Mr. Kellam's case, there was no instruction given that meets the criteria

set forth in § 274. Mr. Kellam argues that this oversight created a gap in the

substantive law on which the jury was asked to evaluate his case.

It does not matter that Mr. Kellam did not raise the issue at trial because

this is a question of law. 133 The relevant questions are: Were the jury instructions

wrong as a matter of law? And did the errors undermine the jury's ability to

"intelligently perform its duty in returning a verdict?" 134

Felony Murder

In Chance v. State, the Delaware Supreme Court stated, "As a matter of

Delaware law, the jury was required to distinguish between Chance's liability for

132 Id. 133 Chance v. State, 685 A.2d 351,352 (Del. 1996). See also Allen, 970 A.2d at 203. 134 Chance, 685 A.2d at 354. 68 the offense of homicide and Chance's culpability for the degree of homicide, i.e.,

the crime of Murder in the Second Degree, Manslaughter or Criminally

Negligent Homicide." 135 The culpability for the degree of the crime is dependent

on the jury's assessment of the defendant’s own culpable mental state, without

regard to another participant's guilt for a different degree of homicide. 136

Mr. Kellam’s awareness of, and involvement in, the deaths that were

incidental to the January 13, 2014 home invasion were disputed. Under the two-

step review and the § 274 standard, it is possible that the jury could have found

Kellam complicit in the planning and implementation of the home invasion, but

not guilty of his accomplices’ decisions to kill the two victims, or at least not

culpable to the same degree. Mr. Kellam was not present at the scene of the

murders. There was competing evidence as to the motivation for the murders

and where or when the "kill order" was given. There was competing cell phone

data (which Trial Counsel did not introduce, as discussed above) that

contradicted that Mr. Kellam gave the "kill order." Even if Mr. Kellam did plan

home invasions in order to commit robberies, he denied planning or ordering

135 Id. at 359. 136 Id.

69 murders. However, without the § 274 Chance instruction, Mr. Kellam argues

that the jury could have erroneously attributed guilt for the murders to him.

The State responds that the facts o f t h e c a s e did not support a § 274

Chance instruction and Trial Counsel's defense would have been stymied by a

request for such an instruction. Indeed, in his Supplemental Trial Counsel Affidavit,

and as discussed above, Trial Counsel states that he intentionally did not request a

§ 274 instruction for three reasons. First, this was an “all or nothing” case. His

strategy was to obtain not guilty verdicts. Neither he nor Mr. Kellam wanted a

compromise lesser included offense verdict. Moreover, Trial Counsel did not view

Murder Second Degree verdicts as a win for Mr. Kellam. With all the additional

charges, such verdicts would have put Mr. Kellam in prison for life anyway. Second,

Trial Counsel did not believe there was any factual basis to request a § 274 Chance

instruction. The trial judge would not have given a lesser-included instruction if

there was no factual basis in the record for it. Third, Trial Counsel strongly believed

that any resort to lesser-included offenses would have undermined his credibility

with the jury.

In my view, what Mr. Kellam fails to recognize is that with any lesser

included offense instruction there must be a rational factual basis in the evidence

70 to support the instruction. "An accomplice level of liability instruction is not required

unless requested for the same reasons as a lesser included offense instruction."137

Such an instruction can be given only if there is a rational factual basis in the

evidence to support it.138 And just as one may waive his right to lesser offense

instructions available under other statutory provisions, one can choose as a strategic

matter to avoid possible conviction of lesser offenses under § 274. Such was the

case here, and under Strickland I will defer to Trial Counsel’s strategic judgment.

Based on the State's theory and M r . Kellam's chosen defense, there simply was

no rational factual basis to support an argument that Mr. Kellam negligently caused

the two deaths. 139 Either M r . Kellam was not involved in directing the robberies

and murders, in which case he was not guilty, or he was involved, in which case

he was guilty of recklessly causing the deaths. A person cannot send others with

guns to rob drug dealers and yet be unaware that by doing so he is creating a

137 State v. Dickinson, 2012 WL 3573943, at *6 (Del. Super. Ct. Aug. 17, 2012), aff'd, 2013 WL 1296263 (Del. Mar. 28, 2013). 138 Erskine v. State, 4 A.3d 391, 395-96 (Del. 2010) (noting that a fundamental underpinning to all jury instructions is that there must be a factual basis to support the instruction); 11 Del. C. § 206(c) ("The court is not obligated to charge the jury with respect to an included offense unless there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense."). 139 See Lawrie v. State, 643 A.2d 1336, 1341 (Del. 1994) (explaining that the evidence must support a jury verdict convicting the defendant of the lesser crime rather than the indicted one to justify a lesser-included offense instruction (citing Ward v. State, 575 A.2d 1156, 1159 (Del. 1990)). 71 substantial risk that death will result.140 Moreover, Trial Counsel had no strategic

reason to request the lesser included offense instruction because it was not

consistent with the defense.141 Trial Counsel's failure to request a § 274 Chance

instruction was not objectively unreasonable. And the lack of such an instruction

does not change the fact that Mr. Kellam cannot show he suffered prejudice

therefrom.

Other Charges

Putting the felony murder charges aside, Mr. Kellam expanded his

argument to include a claim that Trial Counsel also should have requested § 274

Chance instructions for the home invasion, robbery, a n d assault charges.

Trial Counsel addressed this expanded argument in his Second Supplemental

Trial Counsel Affidavit, and the State did so in its Supplement After Oral

Argument. I find Mr. Kellam’s expanded claims unavailing. In my view, those

140 See Lawrie, 643 A.2d at 1341 ("As explained in the 1973 commentary to the Delaware Criminal Code, 'in the case of criminal negligence the actor is unaware of the risk his conduct is creating, whereas in the case of recklessness he is aware."' (quoting Del. Crim. Code with Commentary at 31)). 141 Cf Chrichlow v. State, 2012 WL 3089403, at *2 (Del. Jul. 30, 2012) (finding trial counsel not ineffective for failing to pursue an accomplice "level of liability" jury instruction because it would have undermined his "all or nothing" approach and would have weakened his case); Dickinson, 2012 WL 3573943, at *7 (finding trial counsel's choice not to request lesser-included offense accomplice liability instruction was reasonably professional trial conduct because the instruction was inconsistent with defendant's "all or nothing" defense).

72 charges do not logically support § 274 Chance instructions with respect to mens

rea and such jury instructions were not rationally supported by the evidence.

Under Strickland, I defer to Trial Counsel’s trial strategy and do not find his

strategic decisions to be objectively unreasonable. Nor can Mr. Kellam

demonstrate that he suffered prejudice therefrom, or that the results of the trial

would have been different.

Home Invasion

A § 274 Chance instruction was not appropriate for Mr. Kellam's three

home invasion charges because home invasion is not a crime divided into

degrees based on his mental culpability. However, the Court could have

instructed the jury based on Mr. Kellam' s degree of accountability for the

aggravating factor: that one of the participants was armed with a deadly

weapon. 142 To convict Mr. Kellam of home invasion, the State had to prove that

(1) he "intended to promote or facilitate the commission of conduct" resulting in

home invasion; (2) he "aided, counseled, or agreed to aid" the other defendants

in planning or committing the home invasion; and (3) one of the defendants

knowingly entered or remained unlawfully in a dwelling that was occupied with

142 See 11 Del. C. §826A; Allen, 970 A.2d at 213-14. 73 intent to commit a felony therein, a codefendant committed one of the listed

felonies, and a codefendant was armed with a deadly weapon at the time. 143 If

the evidence rationally supported a finding that Kellam did not know a

participant was going to be armed with a gun, he theoretically could have been

acquitted of home invasion.

However, it does not follow a fortiori that Trial Counsel was ineffective for

failing to have requested such an instruction. Because home invasion is not a crime

divided by degrees of culpability, a § 274 Chance instruction would have been

inconsistent with Trial Counsel’s all or nothing defense. If the jury believed M r .

Kellam' s defense that he was not the mastermind behind the home invasions, it

would have acquitted him of home invasion. The evidence did not rationally support

a conclusion that Mr. Kellam could have been involved in the planning of the home

invasions without having knowledge that guns were to be used. The use of guns

was a detail inextricably intertwined in the planning process.

Moreover, Mr. Kellam cannot show prejudice from the Court's failure to

give a § 274 Chance instruction for the home invasion element of possession of

143 See 11 Del. C. § 826A(a); 11 Del. C. § 271.

74 a deadly weapon. The Court instructed the jury with respect to the possession of

a firearm during the commission of a felony (“PFDCF”) charges that Mr. Kellam

had to know that his codefendants possessed a deadly weapon for him to be found

guilty of those charges. The jury convicted Mr. Kellam on all but three of the

PFDCF charges,144 indicating it believed that he knew his codefendants possessed

the weapons. As such, Mr. Kellam cannot show that the result of his trial would

have different had the jury been given a similar instruction for the home invasion

charges.

Robbery

A § 274 Chance instruction was not appropriate as to mens rea for Mr.

Kellam's robbery and attempted robbery charges because all degrees of robbery

and attempted robbery require the same mens rea: intentional conduct.145 The

relevant aggravating factor that increased the robbery charges from robbery in

the second degree to robbery in the first degree in was that a participant in the crime

144 The jury acquitted M r . Kellam of the PFDCF charges stemming from the possession of a firearm by .an unknown male during the home invasion and attempted robbery of Milton Lofland. T he jury convicted Mr. Kellam of the other PFDCF charges stemming from that incident. 145 Richardson v. State, 3 A.3d 233, 237 (Del. 2010) (noting court had previously held Richardson's robbery and attempted murder charges did not warrant Chance instructions because all the underlying offenses required the same mens rea); 11 Del. C. §§ 831 & 832.

75 displayed what appeared to be a firearm. As with the home invasion charges, the

evidence did not rationally support conviction of the lesser-included offense of

robbery in the second degree based on the idea that Mr. Kellam was unaware

that one of his codefendants was going to display a firearm during the Nelson

and Hopkins murders and the Foster robbery. Trial Counsel's failure to request

such an instruction was not objectively unreasonable. Moreover, as with charges,

the jury's convictions of Mr. Kellam on all but three of the PFDCF charges

indicated t h a t it believed t h a t M r . Kellam knew his codefendants had

firearms. Thus, Mr. Kellam cannot show prejudice from Trial Counsel’s

failure to request a § 274 Chance instruction for the robbery charges.

Assault

Kellam was charged with three counts of assault: (1) assault in the second

second degree for a codefendant intentionally or recklessly causing physical

injury to Milton Lofland by means of a deadly weapon; (2) assault in the third

degree for a codefendant intentionally or recklessly causing physical injury to

Connie Steward; and (3) assault in the second degree for a codefendant

intentionally or recklessly causing physical injury to Azel Foster by means of a

dangerous instrument. A § 274 Chance instruction would have been

76 inappropriate for the Steward assault because no lesser culpability other than

innocence was appropriate. The Court could have instructed the jury on the

assault in the second degree charges that Mr. Kellam could instead be found

guilty of assault in the third degree if the jury assessed that (1) his mental

culpability for the Lofland and Foster assaults was criminal negligence instead of

intentional or reckless, or (2) the evidence supported a finding that Foster or

Lofland were not assaulted with a deadly weapon or dangerous instrument.146 But

the evidence did not rationally support such an instruction. The evidence

clearly established that Foster was injured by a gunshot wound and that Lofland

was hit in the head with a gun. The circumstances of those incidents simply did not

warrant a finding that the codefendants had acted with criminal negligence in

shooting at Foster or hitting Lofland over the head with a gun.147 Thus, Trial Counsel

was not ineffective for failing to request a § 274 Chance instruction for the second

degree assault charges. Nor can Mr. Kellam show prejudice from Trial Counsel’s

146 See 11 Del. C. § 611(2) (providing a person is guilty of third degree assault if "[w]ith criminal negligence [he] causes physical injury to another person by means of a deadly weapon or a dangerous instrument"). 147 Lawrie v. State, 643 A.2d 1336, 1341 (Del. 1994) ("As explained in the 1973 commentary to the Delaware Criminal Code, 'in the case of criminal negligence the actor is unaware of the risk his conduct is creating, whereas in the case of recklessness he is aware."' (quoting Del. Crim. Code with Commentary at 31)).

77 failure to request a § 274 Chance instruction for the assault charges.

Assuming arguendo that the § 274 Chance instruction should have been

given, as discussed above, not all the convictions must be vacated and retried. The

two Home Invasion convictions, and the Possession of a Firearm During the

Commission of a Felony convictions associated therewith, remain standing. The

Home Invasion statute permits as a predicate Robbery in any degree.148 The only

two degrees of Robbery are First Degree149 and Second Degree. 150 In this case, the

predicate felony was First Degree Robbery. Since any § 274 Chance instruction

would have required the jury to find either First Degree Robbery or Second Degree

Robbery as a predicate, and since either of these felonies is a predicate for Home

Invasion, any failure to separate First Degree Robbery from Second Degree Robbery

would have had no impact on the jury’s verdict.

Cumulative Effect of Errors

Mr. Kellam’s final claim asserts that, even if none of the individual claims

discussed above is sufficient to establish that he is entitled to relief, all the claims

148 11 Del. C. § 826A. 149 11 Del. C. § 832. 150 11 Del. C. § 831. 78 when taken together as a whole have a cumulative effect which r i s e s to the level

of reversible error.

Although Mr. Kellam has established an error by Trial Counsel with

respect to his failure to object to erroneous jury instructions, undermining his

felony murder and related convictions, he has failed to show that he is entitled

to relief based on cumulative errors with respect to the remaining convictions.

“Where there are multiple errors in a trial, the Court weighs their cumulative

effect to determine if, combined, they are 'prejudicial to substantial rights [so] as

to jeopardize the fairness and integrity of the trial process."' 151 Mr. Kellam

argues that he has demonstrated that, absent Trial Counsel’s errors, the outcome

of his trial with respect to the remaining convictions would have been different.

I disagree. There is a plethora of evidence and other factors that support the jury

verdict on the remaining charges.

Conclusion

'"Judicial scrutiny of counsel's performance must be highly deferential. It

is all too tempting for a defendant to second-guess counsel's assistance after

151 Johnson v. State, 129 A.3d 882 (Table), 2015 WL 8528889, at *3 (Del. Dec. 10, 2015). 79 conviction or adverse sentence, and it is all too easy for a court, examining

counsel's defense after it has proved unsuccessful, to conclude that a particular

act or omission of counsel was unreasonable."' 152 Despite our Supreme Court's

prohibition on analyzing trial counsel's performance through the "distorting

effects of hindsight," 153 some of the arguments set forth in the original Amended

Petition do just that.

In light of the highly deferential approach I should take when reviewing

such claims, and the strong presumption that Trial Counsel's conduct was

professionally reasonable, Mr. Kellam has not shown that Trial Counsel’s

representation – other than with respect to the erroneous felony murder jury

instruction -- fell below an objective standard of reasonableness or that there is a

reasonable probability that, but for Trial Counsel’s error with respect to the jury

instructions, the result of the case on the remaining convictions would have been

different.

"The defendant is entitled to a fair trial, not a perfect trial." 154 In my view,

except for the erroneous felony murder jury instruction, Mr. Kellam received a

152 Wright, 671 A.2d at 1356-57 (quoting Strickland v. Washington, 466 U.S. at 689). 153 Albury, 551 A.2d at 59. 154 State v. Swan, 2020 WL 7259626, at *20 (Del. Super. Feb. 21, 2020), aff'd, 248 A.3d 839 (Del. 2021). 80 fair trial, and his dissatisfaction with the outcome neither changes that fact nor

demonstrates that, with respect to the remaining convictions, Trial Counsel

provided ineffective assistance of counsel under the standards set forth in

Strickland.

For the reasons discussed above, the Petition is GRANTED IN PART with

respect to Mr. Kellam’s two convictions for First Degree Murder (Counts 3 and 8))

and six of his convictions for Possession of a Firearm during the Commission of

a Felony (Counts 4, 5, 6, 9, 10 and 11). I vacate those convictions. All the

remaining convictions stand.

The State shall notify me if it decides to retry Mr. Kellam on the vacated

convictions.

The remaining claims under Mr. Kellam’s Petition are DENIED.

IT IS SO ORDERED.

/s/ Francis J. Jones, Jr. Francis J. Jones, Jr., Judge Attachment (Exhibit A)

cc: Prothonotary Patrick J. Collins, Esquire

81 EXHIBIT A EXHIBIT A 01/13/14 Incident

Count Years Level V Conviction

1 25 Racketeering 3 Life Murder (Nelson) 4 25 PFDCF (Nelson Murder) Caliber 40 5 25 PFDCF (Nelson Murder) Caliber 22 6 25 PFDCF (Nelson Murder) Caliber 32 8 Life Murder (Hopkins) 9 25 PFDCF (Hopkins Murder) Caliber 40 10 25 PFDCF (Hopkins Murder) Caliber 22 11 25 PFDCF (Hopkins Murder) Caliber 32 12 25 Home Invasion 13 25 PFDCF (Home Invasion) Caliber 40 14 25 PFDCF (Home Invasion) Caliber 22 15 25 PFDCF (Home Invasion) Caliber 32 16 25 Robbery 1 (Hopkins) 17 25 PFDCF (Hopkins Robbery) Caliber 40 18 25 PFDCF (Hopkins Robbery) Caliber 22 19 25 PFDCF (Hopkins Robbery) Caliber 32 20 25 Robbery 1 (Nelson) 21 25 PFDCF (Nelson Robbery) Caliber 40 22 25 PFDCF (Nelson Robbery) Caliber 22 23 25 PFDCF (Nelson Robbery) Caliber 32 24 2 Conspiracy 2

SUBTOTAL 477 + 2 Life

12/11/14 Incident

46 25 Home Invasion (Lofland) 47 25 PFDCF (Home invasion) 48 25 PFDCF (Home Invasion) 51 25 Attempted Robbery 1 52 25 PFDCF (Attempted Robbery 1) 53 25 PFDCF (Attemptrd Robbery 1) 57 25 PFDCF (Assault 2) 58 25 PFDCF (Assault 2) 61 1 Assault 3 62 2 Conspiracy 3

SUBTOTAL 203 12/14/14 Incident

63 25 Home Invasion (Foster) 64 25 PFDCF (Home Invasion) 65 25 PFDCF (Home Invasion) 79 5 Disguise 80 2 Conspiracy 2 81 7 Assault 2

SUBTOTAL 89

TOTAL 769 + 2 Life