State v. Thomas
Opinion
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE ) ) v. ) ID No. 1703001172 ) Cr. A. Nos. IN17-03-0408, etc. KASHIEM D. THOMAS, ) Defendant. )
Submitted: September 17, 2024 Decided: December 16, 2024
MEMORANDUM OPINION AND ORDER
Upon Defendant Kashiem D. Thomas’s Motion for Postconviction Relief, DENIED.
Upon Postconviction Counsels’ Motion to Withdraw, GRANTED.
Carolyn S. Hake, Deputy Attorney General, DEPARTMENT OF JUSTICE, Wilmington, Delaware, for the State of Delaware.
Patrick J. Collins, Esquire, and Kimberly A. Price, Esquire, COLLINS PRICE & WARNER, Wilmington, Delaware, for Mr. Thomas.
Kashiem D. Thomas, pro se.
WALLACE, J. Kasheim Thomas filed an application seeking postconviction relief from his
first-degree murder conviction. He asked for and was appointed postconviction
counsel. Now—as Mr. Thomas has been with both his trial and appeals counsel—
he is dissatisfied with their efforts. Indeed, in his view, all counsel that have ever
represented him have engaged in such an intolerable degree of “misrepresentation
and ineffective assistance” that “the only equitable remedy would be to dismiss the
charges and grant [his] immediate release.”1
The Court has closely examined Mr. Thomas’s motion for postconviction
relief,2 his supplements to that motion,3 his postconviction attorneys’ motion to
withdraw with its supplements,4 the affidavits of Mr. Thomas’s trial and appellate
counsel,5 and the State’s responses to all of these filings.6
For the reasons below, Mr. Thomas’s Motion for Postconviction Relief is
DENIED and his counsels’ Motion to Withdraw is GRANTED.
1 D.I. 163; D.I. 165. 2 D.I. 101 (“Def.’s Rule 61 Mot.”). 3 D.I. 138 (“Def.’s Resp. to 61(e)(7) Mot.”); D.I. 145 (“Def.’s Mem. on Am. Rule 61 Mot.”); D.I. 146 (“Def.’s Am. Rule 61 Mot.”); D.I. 155 (“Def.’s Supp. to Am. Rule 61 Mot.”); D.I. 156 (“Def.’s Reply Br.”). 4 D.I. 132 (“PCR Counsel’s Mot. to Withdraw Br.”); D.I. 133-35 (“PCR Counsel’s App’x” [contents of those three comprehensive volumes will be cited hereinafter as “A-***”]; and D.I. 166-67 (“PCR Counsel’s Supp. Resp.”). 5 D.I. 139 (“App. Counsel’s First Aff.”); D.I. 143 (“Trial Counsel’s First Aff.”); D.I. 148-49 (“Trial Counsel’s Supp. Aff.”); D.I. 150 (“App. Counsel’s Supp. Aff.”). 6 D.I. 151 (“State’s Resp.”); D.I. 152 (“State’s App’x” [contents of this appendix will be cited hereinafter as “B-***”]; D.I. 159 (“State’s Supp. Resp.”); D.I. 168.
-1- FACTUAL7 AND PROCEDURAL BACKGROUND
On February 23, 2017, at approximately 8 p.m., gunfire erupted on the 600
block of East 23rd Street of Wilmington. When the dust settled, two men were down.
Keevan Hale had been struck multiple times and collapsed inside his residence at
602 East 23rd Street.
Kashiem Thomas was felled on the front sidewalk just outside Mr. Hale’s
home. He had been struck in the right rear flank when Mr. Hale fired back at him.
Mr. Thomas could not get to his feet, despite efforts to do so, and remained
incapacitated on the sidewalk.
The testimonial and video evidence introduced at trial showed some of the
actions of the two men just before the shooting started.
Mr. Hale had been drinking beer on his porch and talking with his neighbor,
Hale Omar Baird. At that same time, video surveillance recorded Mr. Thomas
purchasing a cigarette from a convenience store about a block away on the corner of
23rd and Pine Streets. That surveillance footage captured Mr. Thomas leaving the
store wearing dark pants, a black North Face jacket, and a ski mask rolled up on his
forehead. It also tracked him walking toward the direction of his home on the 300
7 Unless otherwise noted, this factual recitation is derived from the prior written decisions issued in this case. See State v. Thomas, 2019 WL 669934, at *1 (Del. Super. Ct. Feb. 8, 2019) (denying motion for judgment of acquittal) (“Thomas I”) (A-1133-1144); Thomas v. State, 2020 WL 1061692, at *1 (Del. Mar. 4, 2020) (affirmance on direct appeal) (“Thomas II”) (A-1226-1228).
-2- block of East 23rd Street. On this trek, Mr. Thomas stopped briefly and interacted
with those in a car that had pulled up to him. He then continued to walk toward
home.
A few minutes later, the same surveillance camera caught Mr. Thomas
again—now with his ski mask rolled down over his face, his hood pulled up, and his
right hand in his pocket—walking towards the 600 block of East 23rd Street as two
cars passed by. Forty-one seconds after leaving the surveillance camera’s view,
ShotSpotter8 alerted to ten gunshots outside the Hale residence.
Just before the gunfire, Mr. Baird had left Mr. Hale to walk to the convenience
store and purchase more beer. On his walk, Mr. Baird saw a man wearing all black
and a mask pass him. Moments after passing him, Mr. Baird heard gunshots.
Mr. Baird testified that the black-clad man was the only person he saw on that block
of 23rd Street when Mr. Hale was shot. And the sum of his trial testimony and pre-
trial statements made it clear that Mr. Thomas—whom Mr. Baird had just passed on
the street and whom he saw trying to get up from the sidewalk just after the exchange
of gun fire—was the person who shot and killed Mr. Hale.
From inside her home, Mr. Hale’s mother watched her son fall through their
8 “ShotSpotter Inc. is a company that partners with law enforcement agencies nationwide to implement its network of gunfire-detecting acoustic sensors to monitor and notify police of purported gunshots and enable faster responses.” ShotSpotter Inc. v. VICE Media, LLC, 2022 WL 2373418, at *1 (Del. Super. Ct. June 30, 2022) (cleaned up).
-3- front door bleeding. She called 911. While on that call, she located Mr. Hale’s 40
caliber handgun on her front porch and passed it to her daughter who hid it in their
couch before the police arrived.
Police arrived quickly to a bevy of onlookers, intermeddlers, and various
members of both the Hale and Thomas families. The first responding officer was
there within two minutes of the Spotshotter alert. He found Mr. Thomas injured on
the sidewalk just outside the Hale house. The officer attempted to render medical
aid, but Mr. Thomas resisted telling the officer, “Don’t touch me, get off me.” And
a never-identified man wearing a yellow traffic vest who was present told
Mr. Thomas, “Yo, don’t answer his questions, don’t tell the cops shit.” The crowd
that continued to form crouched around the officer and Mr. Thomas and hindered
the officer’s attempt to provide aid as they awaited paramedics. Medical and
forensic evidence demonstrated the Mr. Thomas suffered a single gunshot wound to
his lower back; he had been hit by a .40 caliber round.
Officers found Mr. Hale injured inside his home. He had sustained four to six
gunshot wounds to his torso and upper extremities. Before being taken to the
hospital, Mr. Hale responded affirmatively when officers asked: “The guy outside
shot you, buddy?” But Mr. Hale was in extremis on his living room floor and was
unable to answer any of the follow-up inquiry for a description or whether Mr. Hale
knew his shooter. At the hospital, Mr. Hale died that evening from his multiple
-4- injuries. The weapon used to shoot and kill Mr. Hale fired .410 shot shells.
The police located Mr. Hale’s Smith & Wesson Walther PPS .40 caliber
handgun tucked under the arm of the couch in his living room. Strewn on the grass
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE ) ) v. ) ID No. 1703001172 ) Cr. A. Nos. IN17-03-0408, etc. KASHIEM D. THOMAS, ) Defendant. )
Submitted: September 17, 2024 Decided: December 16, 2024
MEMORANDUM OPINION AND ORDER
Upon Defendant Kashiem D. Thomas’s Motion for Postconviction Relief, DENIED.
Upon Postconviction Counsels’ Motion to Withdraw, GRANTED.
Carolyn S. Hake, Deputy Attorney General, DEPARTMENT OF JUSTICE, Wilmington, Delaware, for the State of Delaware.
Patrick J. Collins, Esquire, and Kimberly A. Price, Esquire, COLLINS PRICE & WARNER, Wilmington, Delaware, for Mr. Thomas.
Kashiem D. Thomas, pro se.
WALLACE, J. Kasheim Thomas filed an application seeking postconviction relief from his
first-degree murder conviction. He asked for and was appointed postconviction
counsel. Now—as Mr. Thomas has been with both his trial and appeals counsel—
he is dissatisfied with their efforts. Indeed, in his view, all counsel that have ever
represented him have engaged in such an intolerable degree of “misrepresentation
and ineffective assistance” that “the only equitable remedy would be to dismiss the
charges and grant [his] immediate release.”1
The Court has closely examined Mr. Thomas’s motion for postconviction
relief,2 his supplements to that motion,3 his postconviction attorneys’ motion to
withdraw with its supplements,4 the affidavits of Mr. Thomas’s trial and appellate
counsel,5 and the State’s responses to all of these filings.6
For the reasons below, Mr. Thomas’s Motion for Postconviction Relief is
DENIED and his counsels’ Motion to Withdraw is GRANTED.
1 D.I. 163; D.I. 165. 2 D.I. 101 (“Def.’s Rule 61 Mot.”). 3 D.I. 138 (“Def.’s Resp. to 61(e)(7) Mot.”); D.I. 145 (“Def.’s Mem. on Am. Rule 61 Mot.”); D.I. 146 (“Def.’s Am. Rule 61 Mot.”); D.I. 155 (“Def.’s Supp. to Am. Rule 61 Mot.”); D.I. 156 (“Def.’s Reply Br.”). 4 D.I. 132 (“PCR Counsel’s Mot. to Withdraw Br.”); D.I. 133-35 (“PCR Counsel’s App’x” [contents of those three comprehensive volumes will be cited hereinafter as “A-***”]; and D.I. 166-67 (“PCR Counsel’s Supp. Resp.”). 5 D.I. 139 (“App. Counsel’s First Aff.”); D.I. 143 (“Trial Counsel’s First Aff.”); D.I. 148-49 (“Trial Counsel’s Supp. Aff.”); D.I. 150 (“App. Counsel’s Supp. Aff.”). 6 D.I. 151 (“State’s Resp.”); D.I. 152 (“State’s App’x” [contents of this appendix will be cited hereinafter as “B-***”]; D.I. 159 (“State’s Supp. Resp.”); D.I. 168.
-1- FACTUAL7 AND PROCEDURAL BACKGROUND
On February 23, 2017, at approximately 8 p.m., gunfire erupted on the 600
block of East 23rd Street of Wilmington. When the dust settled, two men were down.
Keevan Hale had been struck multiple times and collapsed inside his residence at
602 East 23rd Street.
Kashiem Thomas was felled on the front sidewalk just outside Mr. Hale’s
home. He had been struck in the right rear flank when Mr. Hale fired back at him.
Mr. Thomas could not get to his feet, despite efforts to do so, and remained
incapacitated on the sidewalk.
The testimonial and video evidence introduced at trial showed some of the
actions of the two men just before the shooting started.
Mr. Hale had been drinking beer on his porch and talking with his neighbor,
Hale Omar Baird. At that same time, video surveillance recorded Mr. Thomas
purchasing a cigarette from a convenience store about a block away on the corner of
23rd and Pine Streets. That surveillance footage captured Mr. Thomas leaving the
store wearing dark pants, a black North Face jacket, and a ski mask rolled up on his
forehead. It also tracked him walking toward the direction of his home on the 300
7 Unless otherwise noted, this factual recitation is derived from the prior written decisions issued in this case. See State v. Thomas, 2019 WL 669934, at *1 (Del. Super. Ct. Feb. 8, 2019) (denying motion for judgment of acquittal) (“Thomas I”) (A-1133-1144); Thomas v. State, 2020 WL 1061692, at *1 (Del. Mar. 4, 2020) (affirmance on direct appeal) (“Thomas II”) (A-1226-1228).
-2- block of East 23rd Street. On this trek, Mr. Thomas stopped briefly and interacted
with those in a car that had pulled up to him. He then continued to walk toward
home.
A few minutes later, the same surveillance camera caught Mr. Thomas
again—now with his ski mask rolled down over his face, his hood pulled up, and his
right hand in his pocket—walking towards the 600 block of East 23rd Street as two
cars passed by. Forty-one seconds after leaving the surveillance camera’s view,
ShotSpotter8 alerted to ten gunshots outside the Hale residence.
Just before the gunfire, Mr. Baird had left Mr. Hale to walk to the convenience
store and purchase more beer. On his walk, Mr. Baird saw a man wearing all black
and a mask pass him. Moments after passing him, Mr. Baird heard gunshots.
Mr. Baird testified that the black-clad man was the only person he saw on that block
of 23rd Street when Mr. Hale was shot. And the sum of his trial testimony and pre-
trial statements made it clear that Mr. Thomas—whom Mr. Baird had just passed on
the street and whom he saw trying to get up from the sidewalk just after the exchange
of gun fire—was the person who shot and killed Mr. Hale.
From inside her home, Mr. Hale’s mother watched her son fall through their
8 “ShotSpotter Inc. is a company that partners with law enforcement agencies nationwide to implement its network of gunfire-detecting acoustic sensors to monitor and notify police of purported gunshots and enable faster responses.” ShotSpotter Inc. v. VICE Media, LLC, 2022 WL 2373418, at *1 (Del. Super. Ct. June 30, 2022) (cleaned up).
-3- front door bleeding. She called 911. While on that call, she located Mr. Hale’s 40
caliber handgun on her front porch and passed it to her daughter who hid it in their
couch before the police arrived.
Police arrived quickly to a bevy of onlookers, intermeddlers, and various
members of both the Hale and Thomas families. The first responding officer was
there within two minutes of the Spotshotter alert. He found Mr. Thomas injured on
the sidewalk just outside the Hale house. The officer attempted to render medical
aid, but Mr. Thomas resisted telling the officer, “Don’t touch me, get off me.” And
a never-identified man wearing a yellow traffic vest who was present told
Mr. Thomas, “Yo, don’t answer his questions, don’t tell the cops shit.” The crowd
that continued to form crouched around the officer and Mr. Thomas and hindered
the officer’s attempt to provide aid as they awaited paramedics. Medical and
forensic evidence demonstrated the Mr. Thomas suffered a single gunshot wound to
his lower back; he had been hit by a .40 caliber round.
Officers found Mr. Hale injured inside his home. He had sustained four to six
gunshot wounds to his torso and upper extremities. Before being taken to the
hospital, Mr. Hale responded affirmatively when officers asked: “The guy outside
shot you, buddy?” But Mr. Hale was in extremis on his living room floor and was
unable to answer any of the follow-up inquiry for a description or whether Mr. Hale
knew his shooter. At the hospital, Mr. Hale died that evening from his multiple
-4- injuries. The weapon used to shoot and kill Mr. Hale fired .410 shot shells.
The police located Mr. Hale’s Smith & Wesson Walther PPS .40 caliber
handgun tucked under the arm of the couch in his living room. Strewn on the grass
in front of 602 East 23rd Street and near its front porch area, they found four Smith
& Wesson .40 caliber spent cartridge casings, as well as three plastic shell casings
and wadding from .410 shot shells. And in the door of a car parked across the street
from Mr. Hale’s residence, they removed a discharged .40 caliber copper bullet
jacket fragment. Additionally, officers saw multiple projectile holes covering the
door frame of a neighboring home and Mr. Hale’s shattered glass home door. The
firearm that was used to kill Mr. Hale was never found. And by the time police got
to him, no firearm was on or around Mr. Thomas.
Forensic evidence showed gunshot residue on Mr. Thomas’s hand. Two
ShotSpotter analyst reports were also introduced at trial. In the first, the analyst
concluded that the initial five shots of ten detected were fired from the street in front
of the Hale residence. The second analyst found: (a) that those first five shots were
fired from the sidewalk directly in front of Mr. Hale’s house; (b) three shots were
then fired from the Hales’ lawn; and (c) two more shots were fired from the lawn
directly adjoining the Hales’ home.
Mr. Thomas was arrested and charged with first-degree murder and related
-5- weapons counts.9 And following a six-day jury trial, Mr. Thomas was convicted of
first-degree murder and possession of a firearm during the commission of a felony.10
Mr. Thomas moved both before the matter was submitted to the jury, and after,
for a judgment of acquittal arguing the State had presented insufficient evidence.11
Both motions were denied. 12
Mr. Thomas was sentenced to life in prison plus fifteen years.13
He filed a direct appeal to the Delaware Supreme Court where, again, he
argued that the State had presented insufficient evidence to convict him.14 His
convictions and sentence were affirmed. 15
MR. THOMAS’S MOTION FOR POSTCONVICTION RELIEF
Mr. Thomas filed his first timely postconviction motion pro se with an
accompanying request for counsel.16 The Court granted his motion for counsel and
Patrick J. Collins, Esquire, and Kimberly A. Price, Esquire, (hereinafter
9 A-94-95 (Indictment). 10 A-1088-1089 (Verdict Form). The State entered a nolle prosequi as to a third indicted offense—possession of a firearm by a person prohibited (IN17-03-1728)—which had been severed by agreement for trial by the Court without a jury. See D.I. 53. 11 See Thomas I, 2019 WL 669934, at *1. 12 Id. at *1, *6. 13 A-1145-A-1149 (Modified Sentencing Order). 14 See Thomas II, 2020 WL 1061692, at *1-2. 15 Id. at *3. 16 Def.’s Rule 61 Mot.; D.I. 102 (“Mot. for Appointment of Postconviction Counsel).
-6- “Postconviction Counsel” or “PCR Counsel”) were appointed to represent
Mr. Thomas in his postconviction proceedings.17
The Court provided Postconviction Counsel with the opportunity to review
the complete record in this matter and file an amended motion if, in their professional
judgment, amendment was appropriate.18
Postconviction Counsel has now filed a Motion to Withdraw as Counsel.19 In
their motion, Postconviction Counsel report that, after careful review of
Mr. Thomas’s case, Mr. Thomas’s claims are so lacking in merit that they cannot
ethically advocate for them; and further, that they are unaware of any other
substantial grounds for relief.20
Under this Court’s Criminal Rule 61(e)(7):
If counsel considers the movant’s claim to be so lacking in merit that counsel cannot ethically advocate it, and counsel is not aware of any other substantial ground for relief available to the movant, counsel may move to withdraw. The motion shall explain the factual and legal basis for counsel’s opinion and shall give notice that the movant may file a response to the motion within 30 days
17 D.I. 108. 18 After Postconviction Counsel was appointed, Mr. Thomas moved pro se for a writ of habeas corpus. D.I. 111. The Court did not consider Mr. Thomas’s writ because he was represented by counsel. D.I. 114; Del. Super. Ct. Crim. R. 47. Postconviction Counsel then filed their first motion to withdraw stating that Mr. Thomas no longer wanted to be represented by counsel during these proceedings. D.I. 116-17. After Mr. Thomas changed his mind about proceeding on his own, that initial motion was deemed moot and Postconviction Counsel continued their representation. D.I. 123, 125, and 177. 19 See generally PCR Counsel’s Mot. to Withdraw Br. 20 Id. at 25-36.
-7- of service of the motion upon the movant.21
Postconviction Counsel provided Mr. Thomas with a copy of their withdrawal
motion and advised Mr. Thomas of his ability under Rule 61(e)(7) to file a response
thereto.22 Mr. Thomas responded23 to the motion to withdraw and filed a separate
motion to stay all proceedings.24
Mr. Thomas’s trial and appellate counsel have filed affidavits addressing Mr.
Thomas’s postconviction claims.25
In addition to his first pro se motion for postconviction relief,26 Mr. Thomas
filed what he entitled “amended postconviction relief motions” and other
supplements—all after Postconviction Counsel’s motion to withdraw.27 Given the
posture of the case when those latter filings were made and the fact that they were
21 Super. Ct. Crim. R. 61(e)(7). 22 See D.I. 131 and D.I. 137. 23 Def.’s Resp. to 61(e)(7) Mot. 24 D.I. 142 (“Def.’s Mot. to Stay”). 25 App. Counsel’s First Aff.; Trial Counsel’s First Aff.; Trial Counsel’s Supp. Aff.; App. Counsel’s Supp. Aff. 26 D.I. 101. 27 See Def.’s Mem. on Am. Rule 61 Mot. and Def.’s Am. Rule 61 Mot.; Def.’s Supp. to Am. Rule 61 Mot.; Def.’s Reply Br. Because some of the issues raised in Mr. Thomas’s supplements were either new or significant revisions of his prior complaints, the Court instructed Postconviction Counsel to re-examine all of Mr. Thomas’s claims to assure their withdraw was still warranted. D.I. 174. Counsel did so, and their position on their Rule 61(e)(7) motion was unchanged. PCR Counsel’s Supp. Resp. So too, was the State’s in response to Mr. Thomas’s final tally of claims. D.I. 168.
-8- permitted at Mr. Thomas’s express request,28 the Court deems them responses
allowed by Rule 61(e)(7).
The State has responded to and opposes Mr. Thomas’s varied prayers for
postconviction relief.29
RULE 61 PROCEDURAL REQUIREMENTS
To evaluate Mr. Thomas’s postconviction claims and determine whether his
counsels’ motion to withdraw should be granted, the Court should be satisfied that
Mr. Collins and Ms. Price conducted a truly conscientious examination of the record
and the law for claims that could arguably support Mr. Thomas’s Rule 61 motion.
The Court should also conduct its own review of the record to determine whether
Mr. Thomas’s Rule 61 motion is devoid of any, at least, arguable postconviction
claims.30
It’s long been Delaware law that courts must consider Criminal Rule 61’s
procedural requirements before addressing any substantive issues.31 The procedural
bars in Rule 61 are timeliness, repetitiveness, procedural default, and former
28 See, e.g., Def.’s Supp. to Am. Rule 61 Mot. (discussing Mr. Thomas’s assertion that he “should be granted leave to add these additional claims and/or points for consideration to assist with the ruling on the postconviction counsel’s motion to withdraw” and “ask[s Court] to grant leave to add these additional claims”). 29 State’s Resp.; State’s Supp. Resp. 30 State v. Lindsey, 2023 WL 2535895, at *5 (Del. Super. Ct. Mar. 16, 2023), aff’d, 2023 WL 8232287 (Del. Nov. 27, 2023). 31 Maxion v. State, 686 A.2d 148, 150 (Del. 1996); State v. Jones, 2002 WL 31028584, at *2 (Del. Super. Ct. Sept. 10, 2002).
-9- adjudication.32 Of these, just one is at play here.
Rule 61(i)(3) bars any particular claim that could have been but was not raised
at trial or on direct appeal, unless the defendant can show cause for relief from the
procedural default and prejudice.33 Generally, Rule 61(i)(3) is inapplicable to claims
of ineffective assistance of counsel—which in the norm can’t be raised against trial
counsel on direct appeal34 and as a practicality aren’t yet ripe against appeals counsel
until the resolution of direct appeal. And so, the Court usually considers those claims
on their merits during postconviction proceedings.35
But Mr. Thomas’s attempt to raise freestanding claims of trial error are
procedurally barred as such by Rule 61(i)(3) if they were never raised at trial or on
32 State v. Peters, 283 A.3d 668, 680 (Del. Super. Ct. 2022), aff’d, 2023 WL 3880124 (Del. June 7, 2023); State v. Madison, 2022 WL 3011377, at *2 (Del. Super. Ct. July 29, 2022), aff’d, 2022 WL 17982946 (Del. Dec. 29, 2022). These procedural requirements are considered on a claim- by-claim basis. State v. Reyes, 155 A.3d 331, 342 n.15 (Del. 2017) (instructing that the “Rule 61 analysis should proceed claim-by-claim, as indicated by the language of the rule”); Madison, 2022 WL 3011377, at *2. And, if any one of these bars applies to a specific claim, then the inmate must show entitlement to exception therefrom under Rule 61(i)(5). Id.; Super. Ct. Crim. R. 61(i)(5) (providing that Rule 61’s procedural bars found in (i)(1)-(4) do not apply to a claim: that the court lacked jurisdiction; that pleads with particularity new evidence of the defendant’s actual innocence; or, that application of a new rule of constitutional law made retroactive on collateral review is required). 33 Super. Ct. Crim. R. 61(i)(3) (“Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows . . . [c]ause for relief from the procedural default and . . . [p]rejudice from violation of the movant’s rights.”). 34 See State v. Smith, 2017 WL 2930930, at *1 (Del. Super. Ct. July 7, 2017); see also Guy v. State, 82 A.3d 710, 715 (Del. 2013) (noting that in Delaware ineffective assistance of trial counsel may not be raised on direct appeal). 35 State v. Martin, 2024 WL 3273429, at *2 (Del. Super. Ct. July 1, 2024).
-10- direct appeal. That said, most of those are slightly different takes on or subsumed
within Mr. Thomas’s collection of ineffective assistance of counsel (IAC) claims
and all are, therefore, addressed and resolved below.
MR. THOMAS’S POSTCONVICTION CLAIMS
Mr. Thomas’s multiple filings contain myriad and oft-overlapping allegations,
complaints, and issues that the Court has organized and addresses as:
A. PCR Claim No. One – Admission of ShotSpotter Evidence
1. The Court improperly curtailed a Daubert challenge36 of the proffered ShotSpotter evidence.37
2. Trial Counsel should have had ShotSpotter evidence excluded.38
3. The State allowed “perjured” testimony from its ShotSpotter expert.39
4. The Court improperly curtailed cross-examination of the State’s Shotspotter expert.40
5. Appellate Counsel should have included and argued ShotSpotter evidence issues.41
36 Such an application to exclude expert testimony invokes Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 794 (Del. 2006) (adopting the holding in Daubert to interpret Delaware’s analog rules of evidence governing the admission of expert testimony). 37 Def.’s Am. Rule 61 Mot. at 4; Def.’s Mem. on Am. Rule 61 Mot. at 63-69. 38 Def.’s Rule 61 Mot. at 5; Def.’s Am. Rule 61 Mot. at 3; Def.’s Mem. on Am. Rule 61 Mot. at 32-33. 39 Def.’s Resp. to 61(e)(7) Mot. at 1-2; Def.’s Am. Rule 61 Mot. at 3; Def.’s Mem. on Am. Rule 61 Mot. at 26-31; Def.’s Supp. to Am. Rule 61 Mot. at 9-21. 40 Def.’s Am. Rule 61 Mot. at 3; Def.’s Mem. on Am. Rule 61 Mot. at 44-49. 41 Def.’s Rule 61 Mot. at 5; Def.’s Am. Rule 61 Mot. at 4; Def.’s Mem. on Am. Rule 61 Mot. at 50-52; Def.’s Reply Br. at 1-24.
-11- B. PCR Claim No. Two – IAC Trial Counsel (Miscellaneous)
1. Trial Counsel failed to engage in proper pre-trial investigation and present an adequate trial defense.42
2. Trial Counsel failed to call a gunshot residue or “shot/trauma” expert.43
3. Trial Counsel failed to object to victim’s dying declarations.44
4. Trial Counsel prohibited Mr. Thomas from testifying.45
C. PCR Claim No. Three – IAC Appellate Counsel (Miscellaneous)
1. Appellate Counsel should have argued more than sufficiency of evidence as basis for reversal.46
2. Appellate Counsel should have argued IAC of Trial Counsel.47
3. Appellate Counsel made an improper concession at oral argument.48
D. PCR Claim No. Four – Prosecutorial Misconduct/Closing Argument
E. PCR Claim No. Five – “Newly Discovered Evidence”49
F. PCR Claim No. Six – Cumulative Error50
For the reasons now explained, none of the claims Mr. Thomas has asserted
42 Def.’s Resp. to 61(e)(7) Mot. at 2; Def.’s Am. Rule 61 Mot. at 3; Def.’s Mem. on Am. Rule 61 Mot. at 32-34; Def.’s Supp. to Am. Rule 61 Mot. at 1-8. 43 Def.’s Rule 61 Mot. at 3-4. 44 Def.’s Supp. to Am. Rule 61 Mot. at 22-25. 45 Def.’s Resp. to 61(e)(7) Mot. at 2. 46 Def.’s Rule 61 Mot. at 3; Def.’s Mem. on Am. Rule 61 Mot. at 50-52. 47 Def.’s Rule 61 Mot. at 3. 48 Id.; Def.’s Mem. on Am. Rule 61 Mot. at 50. 49 Def.’s Am. Rule 61 Mot. at 4; Def.’s Mem. on Am. Rule 61 Mot. at 52-62. 50 Def.’s Mem. on Am. Rule 61 Mot. at 70-72.
-12- in his motion for postconviction relief (or his many supplements) warrant relief
under this Court’s Rule 61.
LEGAL STANDARDS APPLICABLE TO INEFFECTIVENESS CLAIMS
A claim of ineffective assistance of counsel is reviewed under the
familiar two-part Strickland test.51 One asserting ineffective assistance of trial
counsel must demonstrate that: (i) his defense counsel’s representation fell below an
objective standard of reasonableness, and (ii) there is a reasonable probability that,
but for counsel’s errors, the result of his trial proceedings would have been
different.52
For the first prong, deficient performance, the burden is on the claimant to
show that counsel’s conduct fell below an objective standard of reasonableness, “i.e.,
that no reasonable lawyer would have conducted the defense as his lawyer did.”53
There is a strong presumption that counsel’s representation was reasonable;54 “[i]t is
not this Court’s function to second-guess reasonable . . . tactics” engaged by trial
51 Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Neal v. State, 80 A.3d 935, 946 (Del. 2013). 52 Strickland, 466 U.S. at 688-94; see also Alston v. State, 2015 WL 5297709, at *3 (Del. Sept. 4, 2015). 53 Green v. State, 238 A.3d 160, 174 (Del. 2020) (citing Burger v. Kemp, 483 U.S. 776, 791 (1987)). 54 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
-13- counsel.55 And when assessing the reasonableness of counsel’s conduct, the Court
considers “not what is possible or what is prudent or appropriate, but only what is
constitutionally compelled.”56
An ineffective assistance claim targeting appellate counsel is also reviewed
under Strickland.57 When claiming ineffective assistance of appellate counsel,
however, one “must show a reasonable probability that, but for his counsel’s
unreasonable failure to [press a particular claim], he would have prevailed on his
appeal.”58
Now for either, “[t]he likelihood of a different result must be substantial, not
just conceivable.”59 And while the “objective inquiry is not mathematically precise,”
there can only be a finding of the required prejudice “when there is a substantial
likelihood—i.e., a meaningful chance—that a different outcome would have
occurred but for counsel’s deficient performance.”60
55 State v. Drummond, 2002 WL 524283, at *1 (Del. Super. Ct. Apr. 1, 2002). 56 Green, 238 A.3d at 174 (quoting Burger, 483 U.S. at 794). 57 Neal, 80 A.3d at 946). 58 Id. at 947 (quoting Smith v. Robbins, 528 U.S. 259, 285 (2000)). 59 Starling v. State, 130 A.3d 316, 325 (Del. 2015) (quoting Harrington v. Richter, 562 U.S. 86, 112 (2011)); see Strickland, 466 U.S. at 693 (“It is not enough for the [postconviction movant] to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.” (citation omitted)). 60 Baynum v. State, 211 A.3d 1075, 1084 (Del. 2019) (citing Harrington, 562 U.S. at 112).
-14- So, at some point for a postconviction movant to be successful under
Strickland, the Court “must consider the totality of the evidence, and must ask if the
movant has met the burden of showing that the decision reached would reasonably
likely have been different absent the errors” he alleges counsel made.61 “This
measure of prejudice is the same whether the ineffectiveness charge is aimed at trial
or direct appeal counsel.”62
A movant must prove both deficient attorney performance and resulting
prejudice to succeed in making an ineffective assistance of counsel claim. Failure
in the first instance to prove either will doom his claim, and the Court need not
address the other.63 Put another way, “if the Court finds that there is no possibility
of prejudice even if a defendant’s allegations regarding counsel’s representation
were true, the Court may dispose of the claim on this basis alone.”64
61 Dale v. State, 2017 WL 443705, at *2 (Del. Jan. 31, 2017) (cleaned up). 62 State v. Mayfield, 2024 WL 4586540, at *8 (Del. Super. Ct. Oct. 28, 2024) (citing Neal, 80 A.3d at 946 (“When evaluating an appellate counsel’s conduct for ineffective assistance, we apply the same Strickland framework.”) and Ploof v. State, 75 A.3d 811, 831 (Del. 2013) (“Although the United States Supreme Court developed the Strickland test to evaluate trial counsel, we also apply the Strickland test to evaluate appellate counsel’s performance.”)). 63 Strickland, 466 U.S. at 697; Ploof, 75 A.3d at 825 (“Strickland is a two-pronged test, and there is no need to examine whether an attorney performed deficiently if the deficiency did not prejudice the defendant” (citation omitted)); State v. Hamby, 2005 WL 914462, at *2 (Del. Super. Ct. Mar. 14, 2005). 64 State v. Manley, 2014 WL 2621317, at *7 (Del. Super. Ct. May 29, 2014); Green, 238 A.3d at 174-75 (“We may dispose of an ineffective-assistance claim based on the absence of sufficient prejudice without addressing the performance prong if, in fact prejudice is lacking.”); Strickland, 466 U.S. at 691 (“an error by counsel, even if professionally unreasonable, does not warrant setting aside the criminal judgment if the error had no effect”).
-15- ANALYSIS OF MR. THOMAS’S POSTCONVICTION CLAIMS
Mr. Thomas voices certain complaints as standalone claims of trial error or
due process violations. Most often, he then goes on to fault his prior counsel for
failing to champion those arguments at trial or on direct appeal. As a practical matter
then, to determine whether Mr. Thomas has been prejudiced because his trial or
appellate attorney failed to make a particular objection, press an individual issue, or
raise any specific argument on appeal, the Court many times begins and ends its
examination by determining the now complained-of issue’s merits.65 This is because
counsel can never be deemed Strickland ineffective for failing to make an otherwise
futile or inconsequential argument.66
In November 2017, the State sent the defense two ShotSpotter analyses.67
In the first, the analyst concluded that the initial five of the ten shots detected were
fired from the street in front of the Hale residence.68 The second analyst found:
(a) that those first five shots were fired from the sidewalk directly in front of Mr.
65 See generally Ploof, 75 A.3d at 832-33. 66 Peters, 283 A.3d at 680; State v. Prince, 2022 WL 211704, at *7 (Del. Super. Ct. Jan. 24, 2022) (collecting cases). 67 DI 19. The State had been granted a 30-day extension to complete all discovery including any additional expert reports. A-110b-110c. 68 A-227-237.
-16- Hale’s house; (b) three shots were then fired from the Hales’ lawn; and (c) two more
shots were fired from the lawn directly adjoining the Hales’ home.69
In February 2018, Trial Counsel requested an extension of the since-passed
December deadline for expert reports and motions related to those ShotSpotter
analyses.70 Counsel made clear that she was not then requesting a trial
continuance.71
The Court granted the defense request and set a new March 5th deadline
for expert reports or motions.72 Meanwhile, jury selection remained scheduled
for April 17, 2018; trial was to begin the next week.73
On March 5, 2018, Trial Counsel filed a comprehensive motion in limine to
summarily exclude the ShotSpotter evidence, or alternatively, for a Daubert
hearing.74 That comprehensive motion argued that the ShotSpotter evidence was
“both intrinsically and extrinsically unreliable,” had an “unacceptably high error
rate,” and lacked acceptance within the scientific community.75 Trial Counsel also
challenged the ShotSpotter evidence because “it purports to pinpoint an exact
69 A-238-248. 70 A-110d-110e. 71 Id. 72 Id. 73 See A-110a. 74 D.I. 25; A-116-130 (Motion without the inch-thick set of exhibits). 75 Id.
-17- location that a gun was fired or the order of the firing of those gunshots.” In Trial
Counsel’s view, while “ShotSpotter technology provides some objective basis for
detecting sounds which are (or are similar to) gunshots, it is necessary for an actual
human being to listen to the audio recording to make a determination as to whether
or not the sounds which were recorded are in fact gunshots,” and thus, “there is a
subjective component to ShotSpotter evidence which depends upon the skill and
ability of the individual who ‘makes the call’ who may be cognitively biased [given
that] [a]ll of the persons who listen to the ShotSpotter audio recordings are employed
by or aligned with law enforcement.”76
By that time, Trial Counsel had also retained two experts to testify at any
potential Daubert hearing—both had been involved in an earlier challenge of
ShotSpotter in California.77
Three days after its filing, the Court addressed the Daubert motion at an office
conference. The State confirmed then that the ShotSpotter analyses were “probably
. . . a critical piece of evidence in the State’s case.”78 The Court instructed the parties
to confer on hearing logistics and then contact chambers for scheduling.79 Trial
Counsel, noting the looming trial date, acknowledged the probable length of a
76 Id. (emphasis in original). 77 A-138; A-142; A-150. 78 A-137. 79 Id.
-18- Daubert hearing and the now-compressed schedule.80
The parties and Court next addressed the ShotSpotter motion the following
week via teleconference. Given that the issue was of first impression in Delaware,
the admissibility issue’s complexity, and that trial was imminent, the Court was
concerned with the defense-proposed tight scheduling of a Daubert hearing. So, the
Court proposed rescheduling the trial to a date in mid-June or shortly thereafter.81
The Court then queried the parties on whether the trial date would have to be moved
to properly accommodate a Daubert hearing and the Court’s decision on “a crucial
piece of evidence for both sides and their ability to either present or attack it.”82
The State agreed that if a Daubert hearing was needed, a continuance was
necessary.83 But Trial Counsel was concerned that Mr. Thomas was held only on
this murder charge and, thus, would not want any continuance “significantly past
June.”84 Understanding this, the Court said it would set the earliest practicable
new trial date.85
At that point, Trial Counsel asked to keep the April 23rd trial date until
she met with Mr. Thomas in the ensuing few days and determined whether he
80 A-138. 81 A-145-147, A-157. 82 A-147-153. 83 A-158. 84 A-158-159. 85 A-160.
-19- preferred to forgo the Daubert motion knowing that the ShotSpotter evidence
would be admitted but challenged via cross-examination.86 The Court agreed,
but also instructed the parties to agree upon a new potential trial date so Trial
Counsel had that solid alternative date when she conferred with Mr. Thomas on
how they wanted to proceed on the Daubert motion.87
On March 20, 2018, Trial Counsel wrote that she “spoke at length with
[Mr. Thomas] . . . regarding the Daubert motion and the potential for the trial to
be continued to July if we move forward with the Daubert hearing.”88 She
reported that “[i]n consideration of being able to move to trial more quickly and
keep the previously scheduled April trial date, [Mr. Thomas] will withdraw the
Daubert motion.”89
On March 26, 2018, the Court held a status conference to make record of the
defense’s withdrawal of the Daubert motion with Mr. Thomas present.90 At that
conference, Trial counsel recounted what she had written earlier, explaining that she
and Mr. Thomas fully discussed the Daubert motion and that he understood that he
could have a Daubert hearing but that would occasion a trial delay.91 It was
86 A-162-163. 87 A-163-164. 88 A-166. 89 Id.; A-167 (Trial Counsel’s second letter of the same date recounting the same). 90 A-192-193. 91 A-193-194; A-166, A-167.
-20- Mr. Thomas’s and his counsel’s decision that they wished to keep the April trial date
and challenge the ShotSpotter witness then.92
The Court then heard from Mr. Thomas directly. He confirmed that he had
spoken to Trial Counsel regarding the situation, he understood the strategy she
would use to attack the ShotSpotter evidence, and that he had had enough time to
discuss the pros and cons of withdrawing the Daubert motion and moving
forward with trial as planned.93
The Court then ruled that the Daubert motion was moot as withdrawn for
the reasons given at that conference and in Trial Counsel’s earlier letters.94
1. The Court didn’t prevent a Daubert challenge of ShotSpotter evidence.95
Mr. Thomas insists that the Court abused its “judicial authority when [it]
impeded upon the defendant’s ability to properly communicate and strategize
with trial counsel” regarding the Daubert motion and hearing.96 Specifically,
Mr. Thomas points to the March 15, 2018 status conference where the Court
instructed the parties to confer and pick a potential new trial date that would allow
92 A-194. 93 A-195. 94 A-196. See A-166, A-167. 95 Def.’s Am. Rule 61 Mot. at 4; Def.’s Mem. on Am. Rule 61 Mot. at 63-69. 96 Def.’s Mem. on Am. Rule 61 Mot. at 65.
-21- adequate time for the proposed Daubert proceedings.97 According to Mr. Thomas,
the Court’s “orders prohibited trial counsel from informing [him] fully on the facts
and the law, and advising [him] with complete candor concerning all aspects of the
case.”98 In making this claim, Mr. Thomas fixates on and misinterprets one
statement made by the Court during that March 15th conference.
This is one that Mr. Thomas raises as a standalone claim of error—labeling
it as a “violation of the XIV Amendment.”99 In that light, it would be barred by Rule
61(i)(3). Mr. Thomas failed to raise this claim at trial or on appeal. Such procedural
default is fatal unless he can show cause and prejudice under Rule 61(i)(3) or that a
Rule 61(i)(5) exception applies. But Mr. Thomas hasn’t alleged a cause for his
default. He cites no external factor that prevented him from raising this claim at trial
or on appeal—though as discussed earlier and below it is somewhat subsumed in his
IAC allegations related to the handling of the ShotSpotter issues. And, most directly,
he can’t demonstrate any actual prejudice.
During the March 15, 2018 teleconference Trial Counsel asked to keep the
April 23rd trial date until she conferred with Mr. Thomas four days later. She
explained why:
I have a scheduled meeting time to meet with my client on
97 Id. at 65-69. 98 Id. at 69. 99 Def.’s Am. Rule 61 Mot. at 4.
-22- Monday at Howard R. Young where he has been. If my client would prefer -- I would like to discuss this with him -- if he would prefer to go, because he’s very anxious to go to trial, I’m sure of that -- if my client would prefer to not go forward on the Daubert knowing that the ShotSpotter information could come in against him just as regular, as it normally would with cross- examination, can I let the Court know that on Monday?
Because, frankly, if he’s adamant that he wants to go to trial, and we talk through those issues and what that is, he may want to keep the trial date without it, and I really would like to discuss that with him. So I was wondering if your Honor would let us keep the April date for now, and I can report back to the Court on -- I literally have an hour to meet with him between ten and 11 on Monday, so I should be able to report back by 11:30 on Monday whether or not we want to forego the Daubert motion on the ShotSpotter or whether we want to go forward on that. So I’m asking if that would be okay?100
The Court agreed:
That would be fine. I mean, if we can keep the trial date as we are, I will. But look, I don’t want you to, you know, you talk to your client about and strategize with him about what is best, I mean, you know, maybe a Daubert hearing isn’t, maybe cross-examination of experts is, that’s certainly one accepted means of dealing with expert testimony. But, sure, I’m not going to make -- I am not going to make a final decision on whether to pull the plug on the trial date and change it until we see how long that time is and things like that.101
It’s the transcription of the Court’s self-interrupted thought at the beginning
the second sentence—i.e., “But look, I don’t want you to”—on which Mr. Thomas
100 A-162-163. 101 A-163.
-23- hyperfixates when insisting that the Court improperly limited his counsel’s
communication with him. But that read has been singularly his and not at all
consistent with any other case participant’s understanding or with what occurred
thereafter.102
Immediately thereafter, when Trial Counsel expressed that she was
“hoping to defer” confirming any new potential trial date until after she spoke to
Mr. Thomas, the Court instructed the two parties to arrive at a new potential trial
date with chambers that same day. The Court wanted Trial Counsel to have that
important information when she conferred with Mr. Thomas regarding their
options on the Daubert issue.103
102 As our Supreme Court has recently recognized, in some instances, “crediting of the court reporter’s punctuation of [a] trial judge’s ruling” can muddy the understanding a bit. See Strickland v. State, 2024 WL 4366794, at *10 (Del. Oct. 2, 2024). The passage of concern to Mr. Thomas is probably clearer with the following punctuation: That would be fine. I mean, if we can keep the trial date as we are, I will. But look, I don’t want you to, you know[. . . . Y]ou talk to your client about and strategize with him about what is best, I mean, you know, maybe a Daubert hearing isn’t, maybe cross-examination of experts is, that’s certainly one accepted means of dealing with expert testimony. But, sure, I’m not going to make -- I am not going to make a final decision on whether to pull the plug on the trial date and change it until we see how long that time is and things like that. 103 A-163-164: No, I want you all to try and solidify some dates today so that when you talk to your client, you can say, well, you know, for a potential successful attack and excluding this evidence, is, you know, two months or three months really worth it. So that’s why, you know, I want you to have the information you can about when the potential trial date is so when you speak to him. So, I want that conversation between counsel and my chambers to happen now so that we have some realistic dates out there.
-24- The Court never precluded Trial Counsel from discussing the Daubert motion
and strategizing with Mr. Thomas on how to proceed thereon. Rather, the record
reveals that the Court encouraged Trial Counsel to confer with Mr. Thomas having
all the pertinent information related to the choice they then faced: attack the
ShotSpotter evidence via full Daubert proceedings that would delay the impending
trial (and precisely how long that delay might be); or forego the Daubert contest and
challenge the unfavorable bits of the ShotSpotter evidence at then-scheduled trial.
And the record confirms that was indeed Trial Counsel’s understanding.
Because on March 20, 2018, Trial Counsel informed the Court that she
had spoken “at length with [Mr. Thomas] . . . regarding the Daubert motion and
the potential for the trial to be continued to July if we move forward with the
Daubert hearing.”104 In another filing the same day she expounded: “I spoke
with my client this morning at length and he would like to keep the April trial
date. . . . the defense understands that we will not be having a Daubert hearing
and the State will not be calling any additional [ShotSpotter] experts. I have
spoke with my client in detail about this decision . . .”105
At the March 26th hearing, Trial Counsel confirmed—with Mr. Thomas
beside her—that she “explained to him that we could go forward with the
104 A-166. 105 A-167.
-25- Daubert hearing, that [the Court] was not only prepared to do that but that we
actually has a second trial date in the middle of July.” 106 She made it clear that
after consultation with her, Mr. Thomas—“with his eyes wide open”—wanted
to withdraw the Daubert challenge.107 And Trial Counsel added that, with her
alternative strategy of addressing the ShotSpotter evidence in mind, she
supported Mr. Thomas’s decision.108
In a colloquy with the Court, Mr. Thomas confirmed all this.109 As does
the now-expanded postconviction record. Trial Counsel now acknowledges not
only that she in no way felt hindered from fully advising Mr. Thomas on the
ShotSpotter/Daubert issue before they withdrew the motion in limine, but that in fact
she did.110
And, as discussed further now, this background is precisely why
Mr. Thomas’s direct appeals and postconviction counsel recognized the emptiness
of any claim related to the admission of the ShotSpotter evidence at his trial;111 he
knowingly forfeited the issue.
106 A-193-194. The backup trial date selected was July 16, 2018. A-168. 107 A-194. 108 Id. 109 Id. 110 Trial Counsel’s Supp. Aff. at 1. 111 See App. Counsel’s First Aff. at 3; PCR Counsel’s Mot. to Withdraw Br. at 33-34.
-26- 2. Trial Counsel’s tactical decision—knowingly assented to by Mr. Thomas—to allow admission of and to herself use the ShotSpotter evidence was objectively reasonable.112
Mr. Thomas says his trial counsel was ineffective for “fail[ing] to object to
shottspotter [sic] coming into evidence,” for withdrawing the related Daubert
motion,113 and for failing to “properly advise him about the pros and cons of having
a Daubert hearing as opposed to cross-examine at trial.”114
“Strickland doesn’t deem . . . counsel ineffective for not pursuing the best or
most successful strategy; instead, it requires trial[] counsel be informed by a
thorough investigation of law and facts.”115 Indeed, an attorney’s strategic or tactical
choices made after thorough investigation of the relevant law and facts are virtually
unchallengeable.116
Recall, Trial Counsel was fully prepared to and had taken significant
affirmative steps in a bid to exclude the ShotSpotter evidence. She ultimately
made a strategic decision to forego the already-filed Daubert motion in order to
keep the trial date and to use what could be critically helpful aspects of the
112 Def.’s Rule 61 Mot. at 5; Def.’s Am. Rule 61 Mot. at 3; Def.’s Mem. on Am. Rule 61 Mot. at 32-33. 113 Def.’s Rule 61 Mot. at 5. 114 Def.’s Mem. on Am. Rule 61 Mot. at 32-33. 115 Peters, 283 A.3d at 687 (citing Burns v. State, 76 A.3d 780, 788 (Del. 2013); Hoskins, 102 A.3d at 730). 116 Green, 238 A.3d at 174.
-27- ShotSpotter analyses. She explains how she arrived there:
I discussed with Defendant the option of pursuing a Daubert hearing regarding the admissibility of ShotSpotter evidence or, in the alternative, keeping the pending trial date with the understanding that I would cross-examine the State’s ShotSpotter expert regarding the two conflicting reports filed by their corporation. The first report clearly supports the defense that a drive-by shooter fired the shots that fatally wounded the decedent because the report placed those shots as coming from the street. The later report prepared by Paul Greene directly conflicted with the initial ShotSpotter report and instead placed the shots as coming from the sidewalk area where Defendant had been shot by the decedent, thus bolstering the State’s case.117 And at trial, Trial Counsel was prepared to and did attack the ShotSpotter
evidence.118 She cross-examined Mr. Greene regarding the inconsistent results
in the two ShotSpotter reports and focused on the earlier, more favorable report
written by the initial analyst, Simone Ellison, that suggested that the initial shots
came from the street.119 She got Mr. Greene to agree that Ms. Ellison’s report placed
several of the detected shots coming from the middle of the street and other shots
closer to the sidewalk.120 Trial Counsel delved into Mr. Greene’s history of
testifying and some of his particular cases.121 She also asked him of his familiarity
with other jurisdictions’ negative treatment of ShotSpotter evidence and questioned
117 Trial Counsel’s Supp. Aff. at 1 (emphasis in original). 118 A-658-688; A-1099, 1012. 119 A-658-660. 120 A-658-659. 121 A-661-664.
-28- Mr. Greene about the reliability of ShotSpotter technology.122 And during closing,
she urged the jury to accept the results of the Ellison report—which had the likely
fatal shots coming from the street—to argue that the ShotSpotter evidence was
consistent with the defense theory of a drive-by shooting and that Thomas was not
the shooter.123
This strategy could have been engaged by counsel with or without
Mr. Thomas’s assent. “When a defendant is represented by counsel, the authority to
manage the day-to-day conduct of the defense rests with the attorney.”124
Still, “[c]ounsel’s function is to assist the defendant, and hence counsel owes
the client a duty of loyalty . . . . From counsel’s function as assistant to the defendant
derive the overarching duty to advocate the defendant’s cause and the more
particular duties to consult with the defendant on important decisions[.]”125 It’s clear
here that Trial Counsel did just that and her choices were both reasonable strategy
122 A-669-679. 123 A-658-688; A-1099, 1012. 124 Cooke v. State, 977 A.2d 803, 840-41 (Del. 2009) (“Specifically the defense attorney ‘has the immediate and ultimate responsibility of deciding if and when to object, which witnesses, if any, to call, and what defenses to develop.’”) (quoting Wainwright v. Sykes, 433 U.S. 72, 93 n.1 (1977)); see also Jean K. Gilles Phillips, and Joshua Allen, Who Decides: The Allocation of Powers Between the Lawyer and the Client in a Criminal Case?, 71 J. KAN. BAR ASS’N 28, 29 (2002) (citing Wainwright, 433 U.S. at 93 n.1) (“[T]he United States Supreme Court [has] held that the attorney possesses the right to decide certain strategic and tactical decisions, including what witnesses to call, whether and how to conduct cross-examination, what trial motions should be made, and what evidence should be introduced.”). 125 Strickland, 466 U.S. at 688.
-29- and consistent with Mr. Thomas’s express objective. Mr. Thomas can’t complain
now that his attorney should have rejected his express instruction to forego the
Daubert challenge to the ShotSpotter evidence and move forward with the
immediate trial date or be deemed to have provided constitutionally deficient
representation simply because the informed and agreed-to tactic failed.126 On this
basis alone, Mr. Thomas’s claim of ineffective assistance fails.127
Though too, Mr. Thomas has done nothing to demonstrate the prejudice
needed to succeed on this ineffectiveness claim. In shouldering his prejudice burden,
Mr. Thomas must demonstrate “there is a substantial likelihood—i.e., a meaningful
chance—that a different outcome would have occurred but for counsel’s deficient
performance.”128 For Mr. Thomas here that would mean that he would at very least
have to demonstrate a meaningful chance that had counsel tried to wholly exclude
the ShotSpotter evidence on a Daubert challenge she would have been able to do so.
126 Coverdale v. State, 2018 WL 259775, at *5 (Del. Super. Ct. Jan. 2, 2018). Nor can the Court find a Strickland-level conduct deficiency in such a circumstance. See Taylor v. State, 32 A.3d 374, 381 (Del. 2011) (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”) (quoting Strickland, 466 U.S. at 689). 127 Strickland, 466 U.S. at 687 (finding that to succeed on his claim of ineffective assistance of counsel, an inmate must satisfy both prongs of the Strickland test); State v. McGlotten, 2011 WL 987534, at *4 (Del. Super. Ct. Mar. 21, 2011) (“If a defendant cannot establish both [Strickland] prongs, then the ineffective assistance of counsel claim fails.”). 128 Baynum, 211 A.3d at 1084 (citing Harrington, 562 U.S. at 112).
-30- By this measure, Mr. Thomas has failed to satisfy Strickland’s prejudice showing.129
3. The State did not offer “perjured” testimony from ShotSpotter expert.130
Mr. Thomas says that the State violated his due process rights when “[t]he
prosecutor allowed, solicited, and encouraged false testimony from the State’s
key witness, Paul Greene of Shotspotter.”131 He also charges Trial Counsel with
ineffectiveness for “fail[ing] to object to and/or strike Paul Greene’s testimony and
request mistrial.”132
According to Mr. Thomas, Mr. Greene committed “perjury” because there
were inconsistencies between his direct and cross-examinations regarding the
nature and extent of his contact with the State before authoring his ShotSpotter
report.133 He goes on that this “perjury” “sever[e]ly prejudiced” his trial because
the State never expressly addressed the inconsistencies, so the jury never knew
of the “false testimony” during their deliberations.134
129 See Neal, 80 A.3d at 942 ( (“Strickland requires more than a showing merely that the conduct could have, or might have, or it is possible that it would have led to a different result.”) (cleaned up). See also J.A.R. v. State, 374 So. 3d 25, 30 (Fla. Dist. Ct. App. 2023) (upholding trial court’s denial of a motion to exclude ShotSpotter evidence after a full Daubert hearing). 130 Def.’s Resp. to 61(e)(7) Mot. at 1-2; Def.’s Am. Rule 61 Mot. at 3; Def.’s Mem. on Am. Rule 61 Mot. at 26-31; Def.’s Supp. to Am. Rule 61 Mot. at 9-21. 131 Def.’s Am. Rule 61 Mot. at 3; Def.’s Resp. to 61(e)(7) Mot. at 1-2; Def.’s Mem. on Am. Rule 61 Mot. at 26-31. 132 Def.’s Supp. to Am. Rule 61 Mot. at 9. 133 Def.’s Mot. in Lim. on Am. Rule 61 Mot. at 26-31. 134 Id. at 28-29. See Napue v. Illinois, 360 U.S. 264, 269 (1959) (“[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the
-31- Mr. Thomas’s freestanding prosecutorial misconduct claim on this issue
was never raised at trial or on appeal, so it is barred by Rule 61(i)(3).135
But even were the Court to examine this claim on the merits—as might inform
whether Mr. Thomas could demonstrate the required actual prejudice required under
Rule 61(i)(3)’s cause-and-prejudice test136 or the earlier-explained Strickland test for
ineffectiveness—it still fails. No “perjury” occurred here.
The Court has examined the exchanges Mr. Thomas now complains-of. As
the Court reads and recollects them, it was clear that Trial Counsel, the witness, and
the prosecutor largely spoke past each other on how and why Mr. Greene first came
to substitute for Ms. Ellison, generate his own report, and testify at trial.137 That
said, Trial Counsel was able to exploit any inconsistencies via cross-examination
State, must fall under the Fourteenth Amendment. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.”). 135 Reeder v. State, 2006 WL 1210986, at *2 (Del. May 3, 2006) (finding that movant’s claims of “perjury” by witness, subornation of perjury by the prosecutor, and related abuse of discretion by trial judge were barred by Rule 61(i)(3) when raised for the first time on postconviction). 136 See State v. Gregg, 2021 WL 2580713, at *7 (Del. Super. Ct. June 23, 2021), aff’d, 2022 WL 881077 (Del. Mar. 24, 2022) (“And to demonstrate actionable prejudice, the movant must show that there was a substantial likelihood that, had the claim been raised, the outcome of the case would have been different.”) (internal quotation marks and citation omitted); see also Flamer v. State, 585 A.2d 736, 748 (Del. 1990) (stating that to succeed on the element of prejudice required under Rule 61(i)(3)’s cause-and-prejudice test, one must show that there was a “substantial likelihood” that, if he earlier pressed the now-defaulted claim, the outcome of his case would have been different). 137 A-669-679. The same for Mr. Greene’s testimony relating to his own experience in California criminal cases. Def.’s Mem. on Am. Rule 61 Mot. at 29-30. See A-662-664.
-32- and during closing.138
Any lack of clarity or suggested internal contradictions in Mr. Greene’s
testimony come nowhere close to “perjury”139 or “false testimony;” Trial Counsel
fully laid out the lack-of-credibility charge she had leveled at Mr. Greene and the
jury was unimpeded in considering it.140
4. No error in rulings on certain cross-examination of Shotspotter expert.141
Mr. Thomas insists the Court “violated [his] confrontation clause of the Sixth
Amendment, when trial counsel was prohibited from showing prototypical form of
bias on the part of expert witness, Paul Greene, and thereby to expose to the jury the
facts from which jurors could appropriately draw inferences relating to the reliability
138 A-658-688; A-1099, 1012. 139 See DEL. CODE ANN. tit. 11, §§ 1221-23 (2024) (defining perjury as “swear[ing] falsely”). And defining swearing falsely as: A person ‘swears falsely’ when the person intentionally makes a false statement or affirms the truth of a false statement previously made, knowing it to be false or not believing it to be true, while giving testimony . . . .” Id. at § 1224. See Lambert v. Blackwell, 387 F.3d 210, 249 (3d Cir. 2004) (“Discrepancy is not enough to prove perjury. There are many reasons testimony may be inconsistent; perjury is only one possible reason.”); State v. Jones, 2005 WL 2249525, at *2 (Del. Super. Ct. Sept. 8, 2005) (“The mere allegation that the witness gave testimony inconsistent with a prior statement does not necessarily amount to perjury.”). 140 A-658-688; A-1099, 1012. See Romeo v. State, 2011 WL 1877845, at *3 (Del. May 13, 2011) (“[M]ere contradictions in a witness’s testimony may not require reversal because those contradictions may not constitute knowing use of false or perjured testimony. Rather, mere contradictions in trial testimony establish a credibility question for the jury.” (citations omitted)). 141 Def.’s Am. Rule 61 Mot. at 3; Def.’s Mem. on Am. Rule 61 Mot. at 43-49.
-33- of the witness.”142 In essence, Mr. Thomas says that the Court imposed an improper
limit on certain cross-examination of Mr. Greene.
Again, as a standalone claim, this “abuse-of-discretion” allegation was never
raised at trial or on appeal, so it is barred as such by Rule 61(i)(3). And again,
were the Court to examine its merit—as it might have to under Rule 61(i)(3)’s cause-
and-prejudice test143 or Strickland’s IAC test144—Mr. Thomas would get no further.
The now-challenged evidentiary rulings themselves were “prototypical” and correct.
Upon a Rule 403 objection, the Court limited only certain inquiry regarding
the testimonial practices of other ShotSpotter analysts and specific admissibility
rulings in other jurisdictions that Mr. Greene had no personal knowledge of.145 As
proffered, the evidence about what happened in ShotSpotter cases in other
jurisdictions would require additional testimony about the actual evidence and
circumstances thereof. The Court was rightly concerned that it would divert
either into a mini-trial of another court’s ruling or cause Trial Counsel to offer
her own testimony as to what occurred elsewhere. 146 With that in mind, the
142 Def.’s Mem. on Am. Rule 61 Mot. at 48-49. 143 See Gregg, 2021 WL 2580713, at *7; Flamer, 585 A.2d at 748. 144 Peters, 283 A.3d at 689 (Movant “must establish . . . that actual deficiencies in the attorney’s representation caused him substantial prejudice. . . . The prejudice required is defined as a reasonable probability that but for counsel’s errors, the result of his trial would have been different.”). 145 A-666-669. 146 Id.
-34- Court did not wholly prohibit, but did properly tailor, the inquiries allowed
thereon.147 Such Rule 403 rulings have long been common and recognized as
appropriate in Delaware.148
5. Appellate Counsel wasn’t ineffective in eschewing Mr. Thomas’s current ShotSpotter evidence complaints.149
Mr. Thomas says his direct appeals attorney was constitutionally ineffective
for failing to raise any of these Shotspotter issues.150
As mentioned before, Appellate Counsel’s representation is also measured
using the Strickland yardstick.151 Appellate Counsel wasn’t required to raise “every
147 A-666-669. 148 E.g., Bryant v. State, 1999 WL 507300, at *2 (Del. June 2, 1999) (“[C]onfusion of issues, implicates, in part, the . . . concerns addressed under D.R.E. 403—the danger of a mini-trial.”); Tilghman v. Delaware State Univ., 2014 WL 703869, at *3 (Del. Super. Ct. Feb. 10, 2014) (“As the State Defendants correctly argue, presentation of these reports would likely lead to mini-trials about each incident. . . . Presentation of these incidents would just needlessly prolong the trial, have very little probative value, and thus the . . . reports should also be excluded pursuant to D.R.E. 403.”); Laugelle v. Bell Helicopter Textron, Inc., 2014 WL 5038142, at *12 (Del. Super. Ct. Oct. 6, 2014) (“[T]he evidence . . . invites the danger of a mini-trial on that issue, thus misleading and confusing the jury.”); State v. Ellerbe, 2016 WL 4119863, at *4, n.36 (Del. Super. Ct. Aug. 2, 2016) (noting that trial counsel’s decision to forego seeking admission of certain impeachment evidence appropriate under Rule 403 as “the probative value would be substantially outweighed by the danger of unfair prejudice in this particular case, mainly confusing the issues and really trying to have some mini-trial of [the other] matter”). See also State v. Long, 1992 WL 207258, at *7 (Del. Super. Ct. July 23, 1992) (“The unfair prejudice contemplated by D.R.E. 403 means an undue tendency to suggest a decision should be made on an improper basis such as an emotional one, one characterized to shift the jury’s focus away from the incident in issue or to create risk of a mini-trial thereby unnecessarily wasting time.”). 149 Def.’s Rule 61 Mot. at 5; Def.’s Am. Rule 61 Mot. at 4; Def.’s Mem. on Am. Rule 61 Mot. at 50-52; Def.’s Reply Br. at 1-24. 150 Id. 151 Neal, 80 A.3d at 946 (“When evaluating an appellate counsel’s conduct for ineffective assistance, we apply the same Strickland framework.”); Ploof, 75 A.3d at 831 (“Although the United States Supreme Court developed the Strickland test to evaluate trial counsel, we also apply
-35- nonfrivolous issue.”152 Nor should she have pressed what were otherwise futile or
inconsequential arguments.153 Rather, Mr. Thomas “can only show that his appellate
counsel ineffectively represented him where the attorney omit[ted] issues that are
clearly stronger than those the attorney presented.”154
The record reflects that Appellate Counsel considered the ShotSpotter issues
and declined to raise them for good reason155—far from deficient appellate-counsel
conduct, it is that expected of an effective appellate attorney.156
What’s more, to determine whether Mr. Thomas was prejudiced because his
attorney failed to raise any specific issue on appeal, the Court might begin and end
its Strickland examination by considering each omitted issue’s merits.157 As shown
above, Mr. Thomas has failed on each issue he now says Appellate Counsel should
have raised on direct appeal.
the Strickland test to evaluate appellate counsel’s performance.”). 152 Ploof, 75 A.3d at 831 (citing Jones v. Barnes, 463 U.S. 745, 754 (1983); Watson v. State, 1991 WL 181468, at *3 (Del. Aug. 22, 1991) (“Appellate counsel is not constitutionally required to raise all non-frivolous claims on direct appeal.). 153 Peters, 283 A.3d at 680. 154 Ploof, 75 A.3d at 831. 155 App. Counsel’s First Aff. at 3 (explaining that Appellate Counsel recognized the waiver of the ShotSpotter admissibility issues and that as it came in, that one interpretation of that evidence was helpful both at trial because it supported the drive-by shooting theory and on appeal because it supported her insufficiency of evidence argument); App. Counsel’s Supp. Aff. at 3-4 (explaining the futility of the other ShotSpotter issues). 156 Barnes, 463 U.S. at 751-52; Smith v. Murray, 477 U.S. 527, 536 (1986). 157 Ploof, 75 A.3d at 832-33.
-36- B. PCR CLAIM NO. TWO – IAC TRIAL COUNSEL (MISCELLANEOUS)
Mr. Thomas raises other complaints regarding Trial Counsel’s performance.
All are either belied by the trial and postconviction record or unsupported by
applicable the law.
1. Trial Counsel did engage in a pre-trial investigation and presented an objectively reasonable trial defense.158
Mr. Thomas says his trial counsel failed to conduct an adequate pre-trial
investigation159 and failed to present a defense for the charges against him.160 The
record simply does not support this claim.
As is already apparent from the discussion above, Trial Counsel researched
and investigated Mr. Thomas’s case exhaustively when preparing his defense. This
included trying to locate some of the very evidence and witnesses Mr. Thomas now
believes should have been presented.161 And at trial, Trial Counsel vigorously
pursued the identity defense that Mr. Thomas still champions.
158 Def.’s Resp. to 61(e)(7) Mot. at 2; Def.’s Am. Rule 61 Mot. at 3; Def.’s Mem. on Am. Rule 61 Mot. at 32-34; Def.’s Supp. to Am. Rule 61 Mot. at 1-8. 159 Def.’s Supp. to Am. Rule 61 Mot. at 1-8. 160 Id.; Def.’s Resp. to 61(e)(7) Mot. at 2; Def.’s Am. Rule 61 Mot. at 3; Def.’s Mem. on Am. Rule 61 Mot. at 32-34. 161 See, e.g., PCR Counsel’s Supp. Resp. at 5-6 (recounting that Trial Counsel had hired an investigator to attempt to locate some of the same witnesses Mr. Thomas believes should have been presented; those efforts just weren’t successful). See also Trial Counsel’s First Aff.; Trial Counsel’s Supp. Aff.
-37- From her opening statement through closing, Trial Counsel argued that
Keevan Hale died as a result of a drive-by shooting and that Mr. Thomas was
not his killer.162 And to try to sow reasonable doubt and suggest that someone
other than Mr. Thomas fired the fatal shots, she presented evidence that: (a) two
vehicles were present in surveillance video driving up East 23rd Street about the
time of the shooting and a 911 caller said that heard a car at time of the shots;163
(b) Ms. Ellison’s ShotSpotter analysis reported that the initial shots came from
the street;164 (c) there was no eyewitness who either saw the actual shooting or
Mr. Thomas with a gun;165 (d) that no murder weapon was located; (e) Mr. Hale
told the police that he did not know what the shooter looked like or what the
shooter was wearing;166 (f) the victim’s family’s attempts to hide his weapon
after the shooting;167 (g) the discrepancy in the number of projectiles or shells found
and reported shots fired;168 (h) the Hale family’s and Mr. Baird’s use of the plural to
describe who shot Mr. Hale.169 Trial Counsel also cross-examined the State’s
162 A-434-437; A-955-A-960 (Mid-trial motion for judgment of acquittal arguing insufficient evidence of identity); A-1005-1013. 163 A-744-746; A-754; A-798; A-937-938; A-908, Def.’s Tr. Ex. 1 (Recording of 911 call). 164 See A-227-237; A-658-659. 165 A-455; A-459-461; A-742; A-778; A-817-818; A-943-944. 166 A-478. 167 A-468-469; A-479; A-498; A-580-585; A-775-778. 168 E.g., A-576; A-585. 169 A-469-470; A-778; A-778; A-815-818.
-38- witnesses regarding the dubiousness of the gunshot residue evidence, the DNA, and
ballistics evidence to cast doubt on Mr. Thomas’s guilt.170 And Trial Counsel reports
that, even in hindsight, she’s unaware of any other physical evidence that might have
been available or introduced on his behalf.171
Mr. Thomas’s conclusory and speculative second-guessing of trial strategy
are insufficient to shoulder his Strickland burden.172 “Determining whether trial
counsel was wise to or misguided in selecting this strategy is not the Court’s role.
Strickland doesn’t deem trial counsel ineffective for not pursuing the best or most
successful strategy; instead, it requires trial counsels be informed by a thorough
investigation of law and facts.”173 Here Trial Counsel’s acts and strategy were.
170 See, e.g., A-808-811; A-867-868; A-939. 171 Trial Counsel’s First Aff. at 1. 172 Strickland, 466 U.S. at 689 (“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 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.”); Moore v. Deputy Commissioner(s) of SCI-Huntington, 946 F.2d 236, 246-47 (3d Cir. 1991) (“The most we can say is that from our post-trial position, deprived of course of the feel of the trial courtroom, we think we might have recommended something else at the trial if we had been there. Under Strickland that is not a sufficient basis to find the counsel to have been ineffective. We can find a Sixth Amendment violation only if we give mere lip service to Strickland.”) (emphasis in original). 173 Peters, 283 A.3d at 687.
-39- 2. Trial Counsel didn’t need to call a defense gunshot residue or “shot/trauma” expert.174
Mr. Thomas contends that Trial Counsel should have retained a gunshot
residue (“GSR”) expert to “explain away the State’s case” and an “expert on
shot/trauma to explain to the jurors that the victim could not have fired off those
shots if he was immediately struck by the first gunshot in his heart and lung.”175
The State called a GSR expert, Joseph Coiro, who explained that the swabs
taken from Mr. Thomas’s and the victim’s hands revealed sufficient GSR
particles to conclude that each had either discharged a firearm, been in close
proximity to a firearm discharge, or picked up GSR particles through transfer.176
Mr. Coiro couldn’t “say which one is more likely to happen, only that one of
those three scenarios is possible.”177 He told the jury that it’s possible for one
who was shot to have GSR on his person, even if he didn’t discharge a firearm
himself:
So, if someone has been shot, it’s kind of tricky. There could potentially be gunshot residue particles on that person just because they were shot. So, that person may have been in the vicinity of somebody that discharged the firearm. So, they were in the vicinity of the subject that shot them, or the particles were maintained on that bullet when it was discharged from the firearm and they then transferred to that person via that bullet.
174 Def.’s Rule 61 Mot. at 3-4. 175 Id. 176 A-799, A-806-807. 177 A-806.
-40- So, there’s kind of a few scenarios in which it’s possible for a victim to have gunshot residue on them.178
Mr. Coiro testified that there were also GSR particles on the right cuff of
Mr. Thomas’s jacket, and a small population of particles in the jacket pocket.179
During Trial Counsel’s cross-examination, Mr. Coiro acknowledged that GSR
can be transferred from object to object inadvertently.180 He conceded that it was
possible for the GSR found to have been transferred to Mr. Thomas’s jacket if he
had been shot and that the GSR in the jacket’s pocket could have been transferred
from elsewhere on the jacket.181 And Mr. Coiro admitted that only the right cuff and
right pocket of Mr. Thomas’s jacket were tested for GSR because those were the
only areas that police investigators asked him to check.182 And again, as to his
conclusion concerning the GSR residue on Mr. Thomas’s hands, Mr. Coiro testified
he could only say that one of the three scenarios that he testified about earlier—i.e.,
the person being a shooter, a victim, or just in the vicinity—is possible.183 So, Trial
Counsel used the State’s own expert’s testimony to demonstrate less-than-
178 A-807. 179 A-806-807, 810. 180 A-809. 181 A-809-810. 182 A-810. 183 A-811.
-41- inculpatory reasons that GSR was found on Mr. Thomas’s hands and jacket.184
Given all this, Mr. Thomas hasn’t demonstrated that Trial Counsel was
ineffective by not retaining a defense GSR expert. He simply fails to articulate what
more favorable testimony a defense GSR expert could have provided. And as to any
purported “shot/trauma” expert, Mr. Thomas merely surmises what such a witness
might offer.
In short, these conclusory claims that other experts might have been helpful
to his case are insufficient to satisfy Mr. Thomas’s Strickland burden of
substantiating specific allegations of actual prejudice.185
3. Trial Counsel properly dealt with Mr. Hale’s dying declarations.186
Mr. Thomas now believes that Trial Counsel should and could have had
Mr. Hale’s words to the police as he lay near death on his living room excluded from
his trial. The State had filed a pretrial motion to admit them.187 And Trial Counsel
initially opposed that application.188 But after further review Trial Counsel elected
not to oppose it.189
184 See A-1011 (argument by Trial Counsel in closing that the GSR found on Mr. Thomas meant nothing because he was shot). 185 Andrus v. State, 2004 WL 691922, at *3 (Del. Mar. 12, 2004). 186 Def.’s Supp. to Am. Rule 61 Mot. at 22-25. 187 A-187-188. 188 A-200. 189 A-212.
-42- So, the record reflects that Trial Counsel evaluated the issue, weighed its
merits, and decided as a matter of strategy—against opposing the motion. In cross-
examination, Trial Counsel used the dying declarations and body-camera evidence
of that exchange to bolster the misidentification defense.190 Given controlling law
on this evidentiary and her reasonable strategy, the Court can’t find Trial Counsel’s
decision lacking.191
4. Trial Counsel didn’t prohibit Mr. Thomas from testifying.192
Mr. Thomas complains that Trial Counsel prevented him from testifying.
The trial record demonstrates that didn’t happen.193
Before the defense rested its case, the Court conducted a thorough
colloquy to confirm that Mr. Thomas fully understood his right to testify or
not.194 Mr. Thomas unequivocally acknowledged that he understood the
decision to testify or not to testify was his alone and that he could accept or
190 A-478. 191 Drummond, 2002 WL 524283, at *1 (“It is not this Court’s function to second-guess reasonable tactics.”). See 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.”); Peters, 283 A.3d at 680 (“Further, counsel cannot be ineffective for failing to make futile arguments.”) (internal quotes omitted). 192 Def.’s Resp. to 61(e)(7) Mot. at 2. 193 Though it was Trial Counsel’s “professional advice to [Mr. Thomas] was that he should not testify.” Trial Counsel’s First Aff. at 1. 194 A-948-951.
-43- reject whatever Trial Counsel might advise on that.195 He clearly understood
the decision he was making. And the Court concluded then that Mr. Thomas’s
“choice whether or not to testify [was] made knowingly, intelligently and
voluntarily after having consulted with counsel.”196
As this Court has previously held, “[i]f the defendant makes the decision to
waive his right to testify and the Court engages in a colloquy with the defendant to
determine whether the waiver is knowing and voluntary, then the defendant cannot
show cause or demonstrate prejudice suffered as a result of his decision.”197
C. PCR CLAIM NO. THREE – IAC APPELLATE COUNSEL (MISCELLANEOUS)
Mr. Thomas brings more claims regarding Appellate Counsel’s performance
on direct appeal. All are meritless.
1. Appellate Counsel couldn’t have argued IAC of Trial Counsel on direct appeal.198
According to Mr. Thomas his Appellate Counsel should have raised an
ineffective assistance of trial counsel claim on direct appeal. He’s mistaken.
Appellate counsel couldn’t be ineffective for forgoing such a claim because the
Delaware Supreme Court has repeatedly held that claims of ineffective assistance of
195 A-949-950. 196 A-951. 197 State v. Taye, 2014 WL 785033, at *5 (Del. Super. Ct. Feb. 26, 2014) (citing Erskine v. State, 2013 WL 1919121, at *2 (Del. May 7, 2013)). 198 Def.’s Rule 61 Mot. at 3.
-44- trial counsel cannot be considered for the first time on direct appeal.199
2. Appellate Counsel made no improper concession at oral argument.200
Mr. Thomas takes issue with Appellate Counsel’s statement at oral argument
that the fact that he was wearing a ski mask on the warm night of the shooting could
certainly be some evidence of “a consciousness of guilt of something.”201 As
Appellate Counsel rightly observed, “Since case law supports the conclusion that
hiding one’s identity reveals a consciousness of guilt, [ ] counsel would have done
damage to the argument had she not conceded that point.”202
There was no deficient performance here. Nor has Mr. Thomas demonstrated
that had this single statement at oral argument not occurred then there was a
meaningful chance that his conviction would have been reversed.203
3. Appellate Counsel should have argued more than insufficient evidence.204
Mr. Thomas also criticizes Appellate Counsel for her informed and measured
199 Johnson v. State, 962 A.2d 233, 234 (Del. 2008) (“This Court has consistently held that it will not consider a claim of ineffective assistance of counsel on direct appeal if that issue has not been decided on the merits in the trial court.” (citing cases)). 200 Def.’s Rule 61 Mot. at 3; Def.’s Mem. on Am. Rule 61 Mot. at 50. 201 A-951. 202 App. Counsel’s Supp. Aff. at 5. 203 Baynum, 211 A.3d at 1084 (stating that there can only be a finding of the required prejudice “when there is a substantial likelihood—i.e., a meaningful chance—that a different outcome would have occurred but for counsel’s deficient performance”). 204 Def.’s Rule 61 Mot. at 3; Def.’s Mem. on Am. Rule 61 Mot. at 50-52.
-45- decision to argued only insufficiency of evidence when seeking reversal of his
conviction. No doubt, Appellate Counsel made this tactical call after a thorough
review of the applicable law and facts.205
“Experienced advocates since time beyond memory have emphasized the
importance of winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues.”206 Indeed, thoughtfully
engaging that winnowing process to focus “on those more likely to prevail, far from
being evidence of incompetency, is the hallmark of effective appellate advocacy.”207
D. PCR CLAIM NO. FOUR – PROSECUTORIAL MISCONDUCT/ CLOSING ARGUMENT
Mr. Thomas says that his “conviction was obtained in violation of due process,
14th U.S. Const. Amend.,” because “in [his] closing argument . . . the prosecutor
made a highly prejudicial statement to the jurors.”208 Mr. Thomas says without this
statement “the jurors would not have found [him] guilty of murder in the first
degree.”209 That statement is: “Defendant's intent and purpose was to kill Keevan
Hale by gunfire and he succeeded. The evidence shows beyond a reasonable doubt
205 See generally App. Counsel’s First Aff.; App. Counsel’s Supp. Aff. 206 Barnes, 463 U.S. at 751-52. 207 Murray, 477 U.S. at 536 (cleaned up). 208 Def.’s Rule 61 Mot. at 3. 209 Id. at 4.
-46- that Kashiem Thomas intentionally caused the death of Keeven Hale by shooting
him with a firearm, and we ask that you find him guilty as charged.”210
Because the specific wording of the prosecutor’s statement—in the
specific context made and the entirety of the remainder of the State’s
argument—wasn’t improper, Mr. Thomas is due no relief on this claim of trial
error.211
The State was required to prove that he intentionally killed Mr. Hale. Intent
is often inferred from a perpetrator’s actions.212 And, “[t]he intent necessary for
First Degree Murder may be inferred from the type of weapon used, the manner
in which it was used, the type of wound inflicted and the events leading up to and
immediately following the death.”213 And it was only after addressing the
evidence of all of these attendant circumstances, that the prosecutor made the
statement Mr. Thomas complains of. This was not prosecutorial misconduct.214
210 A-1004. 211 Resultingly, the Court need not even consider his charge that Trial and Appellate Counsel were each ineffective for failing to challenge the prosecutor’s now-complained-of utterance. See Def.’s Rule 61 Mot. at 3-4. See Shelton, 744 A.2d at 503 n.183 (“[T]he Sixth Amendment does not require counsel to pursue meritless arguments before a court.”); Peters, 283 A.3d at 680 (“Further, counsel cannot be ineffective for failing to make futile arguments.”) (internal quotes omitted). 212 Brown v. State, 233 A.2d 445, 447 (Del. 1967). 213 Benson v. State, 105 A.3d 979, 983-84 (Del. 2014). 214 See Burns, 76 A.3d at 789 (reasoning that a prosecutor is “allowed to argue all legitimate inferences of the defendant’s guilt that follow from the evidence”). See also Hooks v. State, 416 A.2d 189, 204 (Del. 1980) (stating in her final summation that a prosecutor “should not be confined to a repetition of the evidence presented at trial”); see also Spence v. State, 129
-47- E. PCR CLAIM NO. FIVE – “NEWLY DISCOVERED EVIDENCE”215
Mr. Thomas and Trial Counsel both suggest that the Court should grant a new
trial because of “newly discovered evidence.”216 The allegedly newly discovered
evidence is an online “Motherboard” article titled Police Are Telling ShotSpotter
to Alter Evidence from Gunshot-Detecting AI published in July 2021 by VICE
Media, LLC (“VICE Media”) and is highly critical of ShotSpotter.217
While an inmate may invoke Rule 61 to seek a new trial if such a motion
would be time-barred under this Court’s Criminal Rule 33, when he does so his
claims are subject to Rule 61’s procedural bars.218
Alluded to by Mr. Thomas here, subsection (d)(2)(i) requires a movant to
plead with particularity that “new evidence exists that creates a strong inference that
the movant is actually innocent in fact of the acts underlying the charges of which
he was convicted.”219 Under Rule 61(d)(2)(i), Mr. Thomas shoulders a heavy burden
A.3d 212, 228-29 (Del. 2015) (observing that when prosecutors make such statements, they should include a qualifier “such as, for example, ‘the evidence demonstrates.’”). 215 Def.’s Am. Rule 61 Mot. at 4; Def.’s Mem. on Am. Rule 61 Mot. at 52-62. 216 Id.; Trial Counsel’s Supp. Aff. at 1-2; D.I. 149 (Exhibits to Trial Counsel’s Supp. Aff.); D.I. 122 (Unsolicited e-mail from Trial Counsel to Court during postconviction proceedings providing link to online article). 217 Todd Feathers, Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI, MOTHERBOARD TECH BY VICE (July 26, 2021), https://www.vice.com/en/article/qj8xbq/police- are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai (last accessed December 13, 2024). 218 Downes v. State, 771 A.2d 289, 292 (Del. 2001). 219 Super. Ct. Crim. R. 61(d)(2).
-48- in establishing that the existence of “new evidence” creates a strong inference of his
actual innocence.220 Of import here, a movant can’t successfully navigate the “actual
innocence” standard with evidence that is “merely cumulative or impeaching.”221
Thus, any new evidence “that goes only to the weight or credibility of that which
was presented to the jury is almost never adequate to meet the demanding bar for
being granted a new trial.”222 Yet, characterizing it in a most generous way that is
precisely what the “Motherboard” article is. As such, Mr. Thomas did not carry
his heavy burden223 under Rule 61(d)(2)(i) or (i)(5).224
F. PCR CLAIM NO. SIX – CUMULATIVE ERROR225
Lastly, Mr. Thomas says his due process right to a fair trial was denied
because of the cumulative effect of all the purported errors discussed above.226 Not
so. Because Mr. Thomas has failed on each count to prove that his trial counsel
220 Purnell v. State, 254 A.3d 1053, 1100 (Del. 2021) (“Satisfying the actual innocence test is, by design, a heavy burden, and such meritorious claims are exceedingly rare.”). 221 Id. at 1098-99. 222 Id. at 1098. 223 Bass v. State, 299 A.3d 336, 359 (Del. June 20, 2023) (“Satisfying the actual innocence test is, by design, a heavy burden, and such meritorious claims are exceedingly rare.”) (alteration omitted) (quoting Purnell, 254 A.3d at 1100). 224 See Madison, 2022 WL 3011377, at *7; see also Mason v. State, 2020 WL 7392348, at *1 n.2 (Del. Dec. 16, 2020) (“New evidence that is merely cumulative or impeaching will not satisfy the actual innocence standard.”) (cleaned up). 225 Def.’s Mem. on Am. Rule 61 Mot. at 70-72. 226 Id.
-49- was Strickland-level deficient and that, but for trial counsel’s performance, the
outcome of his trial would have been different, he fails in the aggregate.227 “[A]
claim of cumulative error, in order to succeed, must involve matters determined
to be in error; not the cumulative effect of non-errors.”228
G. MR. THOMAS’S COMPLAINTS ABOUT POSTCONVICTION COUNSEL’S EFFORTS
As mentioned at the opening of this opinion, Mr. Thomas has expressed great
dissatisfaction with his Postconviction Counsel.229
No doubt, “in a jurisdiction like Delaware, where ineffective assistance of trial
counsel may not be raised on direct appeal, the first postconviction ‘proceeding is in
many ways the equivalent of a prisoner’s direct appeal as to the ineffective-
assistance claim.’”230 But just as with his prior proceedings, “[w]hen a defendant is
represented by counsel, the authority to manage the day-to-day conduct of the
defense rests with the attorney.”231 The professional standards for defense counsel
are well-understood. And the Court expects no less of postconviction counsel when
227 See State v. Calhoun, 2024 WL 261329, at *11 (Del. Super. Ct. Jan. 23, 2024), aff’d, 2024 WL 4821679 (Nov. 19, 2024). 228 State v. Sykes, 2014 WL 619503, at *38 (Del. Super. Ct. Jan. 21, 2014), aff’d, 147 A.3d 201 (Del. 2015). 229 E.g. Def.’s Resp. to 61(e)(7) Mot.; Def.’s Mot. to Stay; D.I. 160; D.I. 163; D.I. 165; D.I. 169. 230 Guy, 82 A.3d at 715 (quoting Martinez v. Ryan, 566 U.S. 1, 12 (2012)). 231 Cooke, 977 A.2d at 840-41 (stating that the defense attorney has the “immediate and ultimate responsibility” of deciding what defenses to develop and claims to press).
-50- he or she investigates a matter to determine if a Rule 61 movant’s potential claims
have sufficient merit for counsel to ethically advance them or when discerning
whether any other substantial ground for relief might be available.232
That said, just as at any other stage of the criminal proceeding, “the duty to
investigate does not force [postconviction] defense lawyers to scour the globe on the
off-chance something will turn up; reasonably diligent counsel may draw a line when
they have good reason to think further investigation would be a waste.”233 Indeed,
“he or she need not travel blind alleys in hope they might lead to something helpful
to his or her client’s case.”234
On a Rule 61(e)(7) motion, the immediate backstop is the movant’s ability to
respond directly and suggest possible claims,235 as well as, the Court’s own review
of the record to determine whether his Rule 61 motion is devoid of any, at least,
arguable postconviction claims.236 And just as with counsel at the earlier phases of
this case, a postconviction attorney’s strategic or tactical choices made after
232 Super. Ct. Crim. R. 61(e)(7). 233 Rompilla v. Beard, 545 U.S. 374, 383 (2005); Haight v. Jordan, 59 F.4th 817, 835 (6th Cir. 2023), cert. denied, 144 S. Ct. 578 (2024) (“[C]ounsel is required only to conduct a reasonable investigation.”) (citing Mahaffey v. Page, 151 F.3d 671 (7th Cir. 1998), vacated on other grounds, 162 F.3d 481 (7th Cir. 1998)). 234 State v. Harrell, 2017 WL 2418278, at *2 (Del. Super. Ct. June 5, 2017) (cleaned up). 235 Super. Ct. Crim. R. 61(e)(7) (stating that PCR counsel’s “motion shall explain the factual and legal basis for counsel’s opinion and shall give notice that the movant may file a response to the motion within 30 days of service of the motion upon the movant”). 236 See Lindsey, 2023 WL 2535895, at *5.
-51- thorough investigation of the relevant law and facts are virtually unchallengeable.237
Just so here. To be sure, a duo of unshy and well-experienced postconviction
attorneys have thoroughly examined Mr. Thomas’s case for arguable claims that
might now be advocated. There just are none.
CONCLUSION
Having reviewed the record carefully, the Court has concluded that
Mr. Thomas’s claims are without merit, and no other substantial grounds for relief
exist. Accordingly, Mr. Thomas’s Motion for Postconviction Relief is DENIED and
Postconviction Counsels’ Motion to Withdraw is GRANTED.
SO ORDERED,
/s/ Paul R. Wallace
Paul R. Wallace, Judge
Original to Prothonotary
237 Green, 238 A.3d at 174.
-52-
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