IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) )
v. ) I.D. No. 1609000740 ) JOHN A. TUCKER , ) ) Defendant. )

Submitted: September 18 , 20 20 Decided: June 2 9 , 20 21

Defendant’s Amended Motion for Postconviction Relief

– DENIED Defendant’s Motion for an Evidentiary Hearing

– DENIED



### OPINION

Allison Abessinio and Erika Flaschner, Deputy Attorneys General, Department of Justice, Wilmington, Delaware. Attorneys for the State

. Natalie Woloshin, Esquire of Woloshin, Lynch and Associates, Wilmington, Delaware. Attorney for the Defendant.
STREE TT, J.2

On September 18, 2020, John Tucker (the “De fendant”), through his
attorney , 1 filed an Amended Motion for Postconviction Relief , 2 an Appendix, and a Motion for an Evidentiary Hearing, pursuant to Delaware Superior Court Criminal
Rule 61. The chronology of this case is that:

- On September 9, 2016, Joshua Moore (the “Victim”) was severely beaten by two
men and left bleeding on the ground in an alley.

- On September 9, 2016, within min utes of arrival at the scene, the police arrested Defendant for assault as he and two others walked away.

- On November 21, 2016, Defendant was indicted on the charges of Assault First Degree, Possession of a Deadly Weapon d uring the C ommission of a Felony, and Conspiracy Second Degree. 3

- On May 16, 2017, a jury trial began.

- On May 24, 2017, the jury convicted Defen dant of all charges.

- On September 15, 2017, Defendant was sentenced to a total of twenty

- seven years at Level V incarceration, suspe nded after fifteen years for decreasing levels of supervision.

- On November 8, 2017, Defendant filed a Notice of Appeal.

- On July 17, 2018, the Delaware Supreme Court affirmed Defendant’s conviction and issued its mandate on August 6, 2018

. 4

- On December 28, 2018, Defendant filed a pro se M otion for Postconviction Relief and a Motion for the Appointment of an Attorney.

- On September 18, 2020, Defendant , through his appointed attorney, filed this Amended Motion for Postconviction Relief and App endix alleging in effective assistance of counsel . A Mo tion for an Evidentiary Hearing was also filed

.

- On September 18, 2020, Rule 61 C ounsel also fil ed a Motion to Compel Discovery which was withdrawn on February 5, 2021

. 5

1 Natalie Woloshin, Esq. was appointed as Rule 61 Counsel.

2 Defendant had filed a pro se Motion for Postconviction Relief on December 28, 2018.

3 A co

- conspirator was never arrested or indicted.

4 Tucker v. State , 2018 WL3434557 (Del. July 16, 2018).

5 Rule 61 Counsel sought evidence seized from Ms. Genai Shockley

- Stevens (one of the two people walking with Defendant) and a copy of her April 10, 2017 guilty plea. Based on items contained in the Rule 61 Appendix, it would appear as though the State turned those items over to Rule 61 Counsel without a Court order.3

- On January 29, 2021 , Trial Counsel filed an Affidavit in Response to Defendant’s Amended Motion for Postconviction Relief. 6

- On March 3, 2021, the State filed its Response to the Amended Motion f or Postconvic tion Relief.
A fter a full, thorough , and careful de novo review of the record , Defendant’s

M otions are DENIED

. Defendant had a trial that spa nned several days and was vigorously defended by Trial Counsel. Eyewitnesses observed two men brutally
beat a third man who sustained permanent brain damage . The jury heard the testimony of several police officers, a DNA expert, the victim, the victim’s mother , a nurse, two eyewitnesses who were Defendant’s neighbors, the mother of
Defe ndant’s baby, Defendant’s f oster brother , and the Defendant.
The facts of the case , as elicited at trial , are that on September 9, 2016, shortly
after 11 p.m., eye witnesses from different households heard noises in the alley
behind their residences in the unit block of East 31 st Street in Wilmington . The neighbors looked outside and saw a beating in progress. 7 They observed two men
attack ing ano ther man with their fists and a metal stick

. 8 The alley was not a high

6 Raymond Armstrong, Esq. represented Defendant at trial (“Trial Counsel”)

.
7 May 17, 2017 Tr. at 61.

8 May 18, 2017 Tr. at 103.4

crime area and the neighbors immediately called the police

. 9 The victim was balled up in a fetal position on the ground , did not get up, and was not moving. 10

T he beating continued for approximately five minutes until o ne of the neighbors yelled , “Yo. Whatcha all doing ? ” T he assailants then stopped and ran
away
. 11 One of them ran to ward the alley entrance to his apartment; the other man ran toward Jessup Street. Defendant’s next

- door neighbor later identified Defendant that night , in a photo lineup at police headquarters , as the assailant who had fled to his (Defendant’s) apartment entrance. 12 When the assailants fled, s everal neighbors then went to the person on the ground in the alley and saw that he could not get up, was barely co nscious , and was having difficulty breathing as he lay in a pool of blood with bruises on his body. The police quickly arrived and were informed that three people were walking toward Jessup Street. Cpl . Mich ael Coleman noticed three people (two men and a woman who was pushing a baby stroller 13 ) walking out of the alle y . He did not

9 Id. at 63. Corporal Michael Coleman said he had “never made an arrest or even stopped anybody in that alleyway...th ere is a daycare right there

. ”

10 May 18, 2017 Tr. at 93.

11 May 18, 2017 Tr. at 94.

12 Id. at 98 ; May 22, 2017 Tr. at 13.

13 The woman was later identified as Ms. Genai Stephens

- Shockley.5

attempt to stop them because his attention was drawn to the bloody victim. 14 Cpl.
Coleman testified that there was so much blood at the scene that he “did not know
whether the victim had been shot or stabbed

. ” 15

The victim (subsequently identified as Joshua Moore), w as unresponsive and had difficulty catching his breath

. 16 He was immediately transported to the hospital and put on a ventilator. He had a subdural hemat oma on
each side of his brain and suffered irreparable nerve damage. 17 Moore sp ent four months in the hospital and was then sent to a rehabilitation center for a period of
time to relearn how to walk and eat

. 18 He now lives with his mother because he is
unable to live alone. 19 Corporal Johnny Saunders also arrived near the scene within a few minutes of
the 911 calls

. He saw three people walking near 29 th and Jessup Street. 20 There were no other people on the street. 21 O ne of them ( the Defendant ) was talking on a

14 May 17, 2017 Tr. at 53.

15 May 18, 20 17 Tr. at 52.

16 Id.

17 Id. at 201

- 03.

18 Id. at 211.

19 May 19, 2017 Tr. at 19.

20 May 17, 2017 Tr. at 99.

21 Id. at 76.6

cellpho ne and had a tan canvas bel t partially held in his hand and partially in serted
into one or two loops of his waistban d. Cpl. Sanders detained the Defendant, dro ve
him by the scene , and then took him to police headquarters. Defendant was advised
of his Miranda rights

. 22 Defendant denied knowing anything about a fight ; he said
that he went inside his apartment and then came back out to meet a girl. 23 He later said that Moore had surprised him in the alley and attacked him. The police observed fresh cuts on Defendant’s arm and wet, fresh blood stain s
on the canvas belt. After Defendant was tol d that he could not wash his hands in the bathroom, the police observed Defendant repeatedly lick and spit on his hands and then attempt to wipe stains from his shoes. 24 Subsequent DNA testing o f the stains on the belt and on a part of a grill that
had been stuff

ed into a trash bin near the attack 25 revealed that the stain s contained
the victim’s DNA. Although the stain s on the canvas belt were no longer visible on

22 Miranda v. Arizona , 384 U.S. 436 (1966).

23 May 22, 2017 Tr. at 117.

24 Id. at 118.

25 May 18, 2017 Tr. at 25.7

the day of trial (which was more than a year after the beating ) , t he officer testified

on cross - examination that the blood stain s may have faded. 26 Trial testimony also revealed that Defendant and the victim were acquaintances. They were both Ms. Kanisha Poole ’s former boyfriends , were aware
of each other , and they live d in different neighborhood s
. Ms. Poole testified that Defendant was her baby’s father (their romantic relationship had ended in 2015) and
Moore had been he r boyfriend until a few days before he was the victim of the
beatdown in the alley

. 27 She sai d that Defendant had a temper 28 but there was no animosity between Defendant and Moore despite a verbal argument several months before the beating. Ms. Poole testified that , on the night of the attack , she drove
Defendant (and his foster brother) to East 31 st Street without incident and saw an
unidentified man running near her car immediately after she dropped off Defendant near his apartment. She then drove away and took the foster brother to his house on
the other side of town.
Defendant testified that he was attacked in the alley by Moore as he tri ed to

enter his (Defendant’s) a partment. Defendant said that he fought with Moore in self

26 May 18, 2017 Tr. at. 25. Also, Det. Randa ll Newell testified that he had taken a photograph of the canvas belt on his cellphone. Id. at 53. The Defense sought a mistrial because the State had not disclosed this information. This issue was the subject of Defendant’s unsuccessful appeal.

27 Defendant seemingly did not know that she was no longer romantically involved with the victim.

28 May 22, 2017 Tr. at 69.8

defense. He explained that he was driving Ms. Poole’s vehicle with Shaquan Guilford (hi s foster brother ) as his passenger on the night of the incident. They picked up Ms. Poole fro m her job at approximately 10:45 p.m. and Ms. Poole then
drove them to East 31 st Street near Defendant’s apartment around 11 :00 p.m.
Defendant said that he exited the vehicle and Ms. Poole immediately drove away to
take Guilford to his house

. Defendant testified t hat h e saw a n unidentified man walk in front of Ms.
Poole’s vehicle as he exited the car

. When he approached his apartment entrance , which was in a dark alley in the back , he heard a man sa y “Don’t run, bitch

. y our baby mama set you up

. ” 29 He saw that it was Moore and watched Moore reach into his pants. Defendant ran toward his doorway because he thought that Moore was about to pull out a gun
. Moore , however, charged at him and hit him in the head

. Defendant said that he fought back in self

- defense

. 30 T hey wrestled until they fell
into Defendant’s apartment door and tussled outside of the house. 31

29 May 22, 2017 at 106.

30 Over the State’s objection, the Defendant’s outburst during his preliminary hearing that he (Defendant) “wh ooped [Moore’s] ass because he ran down on me” ( Prel. Hr’g Tr. at 14 , Sept. 23, 2016 ) was entered into evidence.

31 May 22, 2017 Tr. at 107.9

Defe ndant further said that Mark Rollins and Ms. Stephens

- Shockley 32 were
in side his apartment as he wrestled with Moore in the doorway

. Rollins was Defendant’s close friend and Ms. Stephens

- Shockley was the mother of Rollins’ baby. Rollins intervened ; Moore released Defendant ; and Moore the n start ed fighting with Rollins

. Once released, Defendant ran down Jessup Street 33 and immediately called Guilford to warn him that he thought Ms. Pool e had set them up. Defendant testified that he told the police that he did not know that there had been a fight but later said that he fought Moore in self

- defense. 34 The po lice did not
find a gun at the scene

. 35 They did not find a gun anywhere else, either.
Guilford testified that he received a call from Defendant just as Ms. Poole dropped him off at his house on the other side of town. The call was from the
Defendant who was yell ing that Ms. Poole had s et them up
. Guilford confronted
Ms. Poole but she responded by smil ing a nd d r iving away. Defendant’s Amended Motion for Postconviction Relief alleges ineffective
assistance of counsel. Rule 61 Counsel asserts that Defendant was prejudiced because there was no testimony at trial about Ms. Stephens

- Shockley or a black

32 Both sides have repeatedly transposed her names.

33 Id. at 107.

34 May 22, 2017 Tr. at 117

- 18.

35 Id . at 83.10

(possibly leather) belt found in her purse . The D efense also argues that Ms. Stephens

- Shockley should have been called as a witness and that Trial Counsel failed to fully investigate the case.
Defendant ’s claim s are primarily based on information and a transcript that

w ere not part of the trial evidence

. 36 Those documents consist of police reports , a transcript of an undisclosed statemen t given by Ms. Stephens

- Shockley to Det.
Nowell , and Ms. Stephens

- Shockley’s April 2016 guilty plea of lying to the police

. 37 Specifically, Rule 61 Counsel relies on a r eport made by Wilmington Police
O fficer DiRocco 38 who stopped Ms. Stephens

- Shockley at 28 th and Jessup Streets as
she was pushing the baby stroller on the night of the incident. 39 Officer DiR occo transpo rted her to police headquarters and she was advised of her Miranda rights 40

. According to Officer DiRocco’s report, Ms. Stephens

- Shockley denied knowledge
of the assault and denied knowing Mark Rollins despite having a pill bottle with his name on it in her pu rse. Officer DiRocco also found a belt in her purse which she

36 T he information about Ms. Stephens

- Shockley was contained in several undisclosed police reports, were not offered into evidence at trial by the State, and appear to have been provided only after Rule 61 Counsel filed its Motion for Evidence.

37 The Defense supplied them in the Appendix to the Amended Motion.

38 Officer DiRocco did not testify and his first name does not appear in the record.

39 The third person has never been identified.

40 Miranda v. Arizona , 384 U.S. at 436 (1966)

.11

claimed was found in the street. 41 The belt , which was dark or black , was not made
of canvas . It was s eized but not tested for DNA.
Defendant posits that this second belt had an “apparent” blood stai n and that
the introduction of this dark belt would have tended to exculpate the Defendant. Rule
61 Counsel asserts that Trial Counsel should have “use[d] that belt in trial to advance
and corroborate Mr. Tucker’s defense

. ” 42 Rule 61 Counsel adds that it is “confounding” that Trial Counsel did not use the second belt to challenge chain of custody, undermine th e integrity of the police investigation, or bolster the self

defense claim. 43

T he D efense also cites a report by Detective Rodney Newell , the chief investigating officer, concerning a second interview with Ms. Stephens

- Shockley on
October 12 , 2016

. Although the State called Detective Newell as a trial witness , the re was no mention of Ms. Stephens

- Shockley during the trial. 44 Rule 61 Counsel
faults Trial Counsel for not attempt ing to gain an advantage from the fact that Ms. Stephens

- Shockley had gi ven a second story to the police, changed her story,

41 Ms. Stephens

- Shockley’s father arrived at the station and took the baby home. She was released later that morning.

42 Def.’s Amended Mot. at 22.

43 Def.’s Amended Mot. at 20

- 24.

44 The State did not ask the detective about Ms. Stephens

- Shockley, Trial Counsel did no t cross examine him about her, and Trial Counsel did not call her as a witness.12

acknowledged that Rollins was her baby’s father, had been prosecuted for giving a
false statement , and pled guilty to lying to the police

. 45 Rule 61 Counsel alleges that Trial Counsel failed to investigate Ms. Stephens

- Shockley and should have call ed
her as a witness to corroborate Mr. Tucker’s claim of self

- defense

. Rule 61 Counsel also a sserts that Ms. Stephens

- Shockley’s testimony “would have offered an alternate, credible theory as to who inflicted the most serious injuries upon the victim

. ” 46 Defendant claims that “had Trial Counsel introduced information related to Ms. Stephens

- Shockley an d Rollins at trial, there is a reasonable probability that the result of the proceeding would have been different”. 47 Additionally, Rule 61 C ounsel argues that “Trial counsel’s failure to investigate which belt [ ] was tested for DNA and used at trial c ause[d] significant prejudice to
Tucker’s defense

. ” Rule 61 Counsel also requests a n evidentiary hearing

. 48 On January 29, 2021, Trial Counsel submitted an Affidavit in response to
Defendant’ s allegations

. Trial Counsel denies the claims.

45 Ms. Stephens

- Shockley was arrested in October 2016 and pled guilty to Providing a False Statement to Police on April 10, 2017.

46 Id

. at 29.

47 Id . at 30

- 31.

48 Id . at 18.13

As to the issue of the belt, Trial Counsel wr ote that he had examined all of t he evidence and photos provided by the State and was aware of the black belt

. 49 He wrote that he made a strategic decision that the D efense would not use th at belt at
trial.
Trial Counsel explained that he did not wan t to introduce a second belt
because it might have undermined Defendant’s claim of self

- defense. Moreover, its origin was unknown, he did not want the jury to conclude that the second belt was used as a weapon , and he did not want the jury to think that the Defendant had removed the belt. Additionally , in view of the fact that the victim was fo und naked with his pants down around his ankles, he “did not want to take the chance that the second belt would serve as the State’s pr oof that either Mr. Tucker or Mr. Rollins [had] stripped the State’s victim naked as an effort to humiliate him

. ” 50 Concerning Ms. Stephens

- Shockley, he explained that he was aware of her
and the statement that she gave on the night of the incident ; however , the State had
not informed him of or disclosed a second (contradictory) statement or that she had entered a guilty ple a for lying to the police

.

49 The record indicates that more than 111 photos, several DVDs, numerous police reports, the DNA lab report, the victim’s medical records, and search warrant applications were provided to the defense pretrial.

50 Trial Counsel’s Response at 5.14

Furthermore, even though Trial Counsel had incomplete information a bout Ms. Stephens

- Shockley, the D efense attempted to interview her as part of its investigation. However, she refus ed to cooperate with the defense investigator . As such, Trial Counsel di d not know whether she would help or hurt the D efense if called to testify (particularly since she was Rollins’ girlfriend)

. Trial Counsel explained that his policy is to not call anyone as a witness unless he knows what that person will say. Thus , it was Trial Counsel’s strate gy, “as approved by Mr. Tucker , ” 51 to focus on Ms. Poole’s animosity toward Defendant
that was manifested by a scheme to use Moore to harm Defendant and that Defendant only engaged in the altercation in order to defend himself from Moore ’s aggression

. He also wanted to show t hat any DNA found was the inevitable result of the
altercation. Trial Counsel also wrote that he wanted to “do wnplay the involvement or intervention of any 3 rd party” 52 and did not want the jury to think that Defendant joined with someo ne else to exact revenge for Moore’s attack.
Trial Counsel reasoned that Defendant’s self

- defense claim was “locked [due to his] previous statements to the police and his outbu rst at the preliminary hearing

. ” 53 Hence, Trial Counsel did not want to draw attention to another belt

51 Id. at 2.

52 Id

.
53 Id . at 4.15

because it would under mine that claim. Furthermore, Trial Counsel wanted to cast
doubt on the quality of the police investigation and the fact that the belt in evidence did not have any visible blood stains.
The State , in its Response, argues that Defendant’s claims lack merit. The
State writes that ther e was extensive evidence pointing to Defendant’s guilt. Defendant, who was known to one of the eyewitnesses, was seen beating the victim and fifteen minutes later was caught holdin g a belt that was stained with the victim’s
blood.
The State asserts that the Defendant h as mischaracterized the evidence , placed undue weight on the im portance of the black belt, and that “Defendant cannot demonstrate that introducing the existence of a second belt would have resulted in
an outri ght exclusion of Defendant’s belt from trial”. 54 The State also writes that Defendant has not suffered any prejudice. Before considering the merits of any claims asserted in a motion for postconviction relief, the Court must first determine if the motion is procedurally barred under Superior Court Criminal Rule 61. 55

54 State’s Response at 16.

55 Superior Court Criminal Rule 61(i) provides, in pertinent part: Bars to relief. (1) Time limitation. A motion for postconviction relief may not be filed more than one year after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is16

Defendant’s motion is timely, having been filed within one year after his judgment of conviction became final, is not repetitive, and was not previously adjudicated. There are no procedural bars to Defendant’s Motion. However, in the instant case, an analysis of the law concerning attorney performance leads to the conclusion that Trial Counsel did not fall below normal
standards.
A defendant must do more than simply claim that his counsel was ineffective. The defendant must show that counsel’s alleged “errors were so grievous that his performance fell below an objective standard of reasonableness . . . [and] there is a reasonable degree of probability that but for counsel’s unprofe ssional errors the outcome of the proceedings would have been different.” 56

final, more than one year after the right is first recognized by the Supreme Court of Delaware or by the United States Supre me Court. * * * * (3) Procedural Default. 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

(A) Cause for relief from the procedural default and (B) Prejudice from violation of the movant’s rights Also, a meritorious ineffective assistance of counsel claim that demonstrates a constitutional violation may be consider ed an except ion under Rule 61(i)(5). State v. Flowers, 150 A. 3d 276, 282 (2016).

56 State v

. Gattis , 1995 WL 790961, at *4 (Del. Super

. Dec. 28, 1995) (citing Strickland v. Washington , 466 U.S. 668, 687, 694 (1984)). See also Harrington v. Richter , 562 U.S. 86, 104 (2011); Premo v. Moore , 562 U.S. 115, 121 (2011); Scott v. State , 7 A.3d 471, 475

- 76 (Del. 2010); Duross v. State , 494 A.2d 1265, 1268 (Del. 1985).17

The law is clear that there is a strong presumption that counsel’s representation is competent and falls within the “wide range” of reasonable professional assistance. 57 Moreove r, deference must be given to counsel’s judgment in order to promote stability in the trial process. 58 Furthermore, to overcome the strong presumption that counsel has acted competently, the defendant must demonstrate that “counsel failed to act reasonabl[ y] considering all the circumstances” and that the allegedly unreasonable performance prejudiced the defense. 59 The issue is not whether counsel deviated from the best or most common practice but whether counsel’s representation was inadequate under
the “ prevailing professional norms.” 60 Thus, the essential question is whether counsel made mistakes so crucial that counsel was not functioning at the level guaranteed by the Sixth Amendment and deprived the d efendant of a fair trial. 61
In the instant case, the Court does not find that the performance of Trial
Counsel was substandard , does not find that Defendant was prejudiced or prevented from having a fair trial , and does not find that any alleged errors of Trial Counsel

57 Premo , 562 U.S. at 121.

58 Id. at 125.

59 Cullen v. Pinholster , 563 U.S. 170, 189 (2011) (internal quotation marks omitted) (quoting Strickland , 466 U.S. at 688).

60 Harrington , 562 U.S. at 105.

61 Id. at 104.18

weakened Defen dant’s appeal. An analysis of the record reflects that Trial Counsel’s representation was not unreasonable , did not fall below objective standards, and did not prejudice Defendant’s case

. Concerning the black belt, Rule 61 Counsel alleges that the introduct ion of that belt would have created a reasonable probability that the Defendant would have been acquitted by the jury

. Defendant posits that it would have placed suspicion on Mark
Rollins , support ed Defendant’s self

- defense claim, and suggest ed that the blood

stained tan canvas belt found on De fendant had not been involved in the incident

. Defendant’s arg ument is unpersuasive and distracts from the evidence. The

case against Defendant was overwhelming, with or without one or more belts in
evidence

. Defendant was indicted and convicted of beating Moore using a grill

cover as a weapon while acting with an accomplice. Moreover, the testimony clearly showed that the police had not confused the
tan canvas belt with the black belt 62 ; the transcript reflects that Rule 61 Counsel’s
assertion that the victim’s DNA was on the black belt is conjectur e; and Trial
Counsel did not think that it was a go od strategy to have the jury consider whether

62 Furthermore, contrary to Rule 61 Counsel’s comment that the black belt “seems to have vanished” (Def.’s Am ended Mot. at 22), Trial Counsel was aware of the black belt and it does not appear as though the black belt has been misplaced.19

the black belt possibly belonged to or was used either by Defendant or an accomplice. Trial Counsel wanted to focus on self

- defense and sloppy police work. Although the blood

- stained tan canvas belt that Defendant held was placed into evidence, the second count of the indictment was Possession of a Deadly Weapon d uring the Commission of a Felony

– a grill cover used as a bludgeon

. 63 Unimpeached e yewitnesses watched as the assailants beat their victi m with a metal object, a grill was found in a bi n near the helpless victim, the grill cover was found
to have the victim’ s DNA on it, and Defendant was positively identified by his neighbor as one of the men who participated in the beatdown. Rule 61 Counsel has
not shown that introduction of the black belt at trial could neg ate the DNA on the

gr ill cover , discredit the testimony that Defendant’ s next

- door neighbors watched a
vicious beat ing, that Moore was struck with something metal (clearly not a canvas belt or a leather belt) , that Defendant’s next

- door neighbo r watched him leave the
attack , or that his neighbor identified him later that night at police headquarters.

63 11 Del. C. § 1447(a) states that “A person who is in possession of a deadly weapon during the commission of a felony is guil ty of possession of a deadly weapon during the commission of a felony.”
11 Del. C. § 222 defines a deadly weapon, in pertinent part: (5) “Deadly weapon” includes...[a] bludgeon...or any “dangerous instrument”...which is used...to cause...serious physical injury. The same section of the code defines a “dangerous instrument”, in pertinent part: (4) “Dangerous instrument” means any instrument, arti cle or substance which, under the circumstances in which it is used,...is readily capable of causing death or serious physical injury....20

Furthermore, although Rule 61 Counsel suggests that introduction of the b lack
belt would raise a chain of custody issue , the record shows that Trial Counsel had already raised that issue during trial as part of his strategy to cast doubt on the police

. Additionally, t he testimony as to the tan canvas belt was straightforward. T he police did not confuse the tan belt with any other belt and the blood stains had faded due to the passage of time. The police testified that normal protoc o ls for storage, DNA testing, and presentation were followed

. So too, t here is no thing in the record to suggest that there were two tan canvas belts , that the police h ad difficulty distinguishing a tan canvas belt from a black non

- canvas (possibly leather) belt, or
that there was an intentional or unintentional substitution of one belt for another when sent for DNA analysis.
Defendant also posits that Trial Counsel should have further investigated and/or p ut the black belt into evidence because it would have shifte d blame to Rollins
and that the black belt had “apparent” blood on it based on the detective’s comments
to Ms. Stephens

- Shockley upon find ing the black belt in her purse

. Ho wever, Defendant’s extrapolat ion from the detective’s comments is misplaced.
The evidence is clear that two men beat Moore. The evidence is also clear that a neighbor identified Defendant as a participant in the beating and Defendant was indicted for being part of a conspiracy. Rule 61 Counsel has not shown that21

blaming Rollins (w ho was n ot arrested or indicted) would prompt the jury to acquit
Defendant of conspiracy, assault, or the weapons charge. So too, Rule 61 Counsel’s interpretation of a detective’s conversation with Ms. Stephens

- Shockley about the belt is faulty. Ms. Stephe ns - Shockley was detained by the pol ice within minutes of the beating as she walked near Defendant and pushed the baby stroller

. Det. Nowell had a lengthy exchange with Ms. Stephens

- Shockley about her purse, a belt found in the purse, a bookbag, prescription bottles, and a cell phone . The following are portions of that exchange: Detective: Whose belt is in your purse? Shockley: That’s mine. Detective: Looks like a man’s belt. Shockley: I got it from a guy.

* * * Shockley: It ’s. Okay. The belt’s not mine. Detective: Whose

- whose

- whose belt is it? Shockley: I found it. Detective: Where did you find it? Shockley: On the ground.

* * * Shockley: I found the belt and as I picked it up. Detective: Hm. Shoc kley: That was stupid, wasn’t it? Detective: Yeah. Because the issue is, um, that the belt has what we think is going to be blood on it. Shockley: Really? Detective: Yeah. And that blood is going to match the victim’s blood from this assault that I’ve bee n talking about...

* * * Detective: ...Um. We talked about that belt?

* * * Detective: Okay. Um. And you said you picked it up where again? Shockley: On Market Street.22

Detective: Market Street? Okay. You mind if I

– I keep the belt? It could be important to this assault case. Shockley: (shrugs) I don’t care. 64 The transcript refle cts that the detective raised the possibility of blood and
DNA in an effort to extract a coherent story from a reluctant witness. Contrary to Defendant’s assertion, the detective did not affirmatively state that there actually was blood on the black belt. As such, declaring that the black belt “had what appeared to be blood on it f rom a person who was purportedly at the scene...” 65 and
th at “there was a belt in police custody which had apparent blood on it collected from Stephens

- Shockley...” 66 is taking the detective’s words out of context.

T he transcript shows that Ms. Stephens

- Shockley was evasive and contradictory as t he detective attempted to persuade Ms. Stephens

- Shockley to talk
about t he events of that evening

. H e prese nted his suspicions to her a nd what might possibly be found on the belt. He told her that h e thought that there would be blood

on the belt. He then expanded on that idea and projected that it would match the victim’s blood. After that tactic was unavailing, he commented that the belt might be of pote ntial value because it could be important to the assault investigation. 67 The

64 Def ’s Appendix at A083

- A087.

65 Def

. ’s Amended Mot

. at 22.

66 Id

.
67 Emphasis supplied

.23

officer used coerc ive tactics on an individual who had given evasive a nd inconsistent responses. S uggestions , suspicions , and projections are not facts

. 68 The detective’ s attempt to get coherent and potentially incriminating information from someone caught leaving the scene of a crime do not support a claim of ineffective assistance
of counsel. As to the Assault First Degree charge, Rule 61 Counsel’s argument that the
introduction of a second belt (with or w ithout bloodstains) would have result ed in a
different verdic t is speculative. The State’s case was strong . Moreover, a belt was not the defining issue or weapon in this prosecution. Defendant has not shown that
evidence of a sec ond belt would have mitigated the force that caused Moore’s permanent brain damage , uncoupled Defendant from a Conspiracy charge, or
avoided Defendant’s Assault in the First Degree conviction

. 69 Furthermore, there was no evidence that Moore had a belt and the source of
the black belt remains unknown

. As such, irrespective of who had the black belt (Defendant, Rollins, Ms. Stephens

- Shockley , or an unknown person ), suggesting to the jury that the victim’s blood might also have be en on a second bel t (especially since it had not been analyzed) would not inure to Defendant’s benefit.

68 The officer’s comments are u nsupported and unverifiable. The black belt was never sent for DNA testing.

69 11 Del. C. §613(a) states that a person is guilty of assault in the first degree when: (1) The person intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.24

Here, Defendant was “locked” into a claim that he “whooped [Moore’s] ass” because Moore was the aggressor. Defendant could not logically recant his self

defense claim

. H o w ever , the evidence reflects that the incident in the alley went beyond a mere self

- protective fistf

ight or tussle. The evidence showed that
Defendant participated with another in a vicious beating of an unarmed person who

was huddled on the ground , the person on the ground was not a t hreat to Defendant , and D efendant had an opportunity to retreat (and, in fact, Defendant and his accomplice disengaged without difficulty from the attack when a neighbor yelled at
them and it became clear that they were being watched )

. 70 Under the circumstances, the degree of force in the alley and the use of a bludgeon were unjustified

. While a person might be justified in using force in self

defense to protect himself or another against the use of u nlawful force by another

person, the re is no evidence that Moore used unlawful force

. Moreover, although Defendant claimed that he thought Moore had a gun, there is no evidence that a gun
was involved. Here, Defendant was arrested and prosecuted for the use of deadly

70 11 Del

. C . §464 states, in pertinent part, that the use of deadly force is not justifiable...if: (e)(2) The defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating... [although] (a) the defendant is not obliged to retreat in or from the defendant’s dwelling; and (b) the defendant is not obliged to retreat in o r from the defendant’s place of work, unless the defendant was the initial aggressor25

force which is un

justified when deadly force is not necessary to pro tect against the threat of death or serious injury by another person. W hatever may have initially occurred evidently progressed to the alley where two eyewitnesses watch ed for five
minutes as Defendant and another person beat Moore w ith an object into semi

consciousness and permanent brain damage

. Furthermore, d eadly force is not justifiable when a defendant is outside of his dwelling if the necessity for using deadly force could have been avoided wit h complete safety by retreating. Here, Defendant was outside of his dwelling and had the opportunity to retreat. H is semi

- conscious victim lay in a fetal position in a pool
of blood on the ground in an alley , was not a threat to Defendant, could not have
harmed Defendant , and could not have pre vented Defendant from retreating. Defendant had ample time and opportunity to retreat , which he easily did when his neighbor yelled at them

. U nder the circumstances, a second belt would not change
the fact that eyewitnesses watched a five

- minute beatdown of a person who lay on the ground and was barely breathing

. The second belt would not acquit Defendant
of the assault first degree charge. As to the conspiracy count in the indictment , whether or not the Defendant was alone when the incident bega n, Defendant was not alone as events ensued.26

E yewitnesses came out of their houses , observed a beating in progress , and testified that they watched two men as they , together , beat the victim for five minutes

. 71

T hus, i rrespective of how the encounter began, Defendant acted with another

. Placing a n additional , dissimilar, and untested belt in to evidence would not exculpate the Defendant from the conspiracy charge (particularly since Defendant testified that Rollins was also fighting Moore) or accomplice liability

. So t oo, Defendant’s suggestion of accomplice self

- defense does not justify the deadly force possibly used by the accomplice

. Thus, t he decision to not introduce an additional, dissimilar, and untested belt of unknown origin was not unreasonable and did not cause prejudice. Furthermore, Trial Counsel explained that it was his conscious choice to not
introduce a seco nd belt at trial. Trial Counsel did not want the jury to think that two belts might have been used to brutalize the victim, publicly humiliate him, or cause permanent brain damage. Moreover, he did not want to risk the jury concluding that
the two belts i ndicated calculated behavior, contradicted Defendant’s claim of surprise and self

- defense, or cast doubt on Defendant’s credibility. This was part of Trial Counsel’s strategy.

71 11 Del. C. §512 defines Conspiracy Second Degree, in pertinent part, as: A person is guilty of conspiracy in the second degree when, intending to promote or facilitate the commission of a felony, the person: (2) Agrees to aid another person

... in the commission of the felony...; and the person or another person with whom the person conspired commits an overt act in pursuance of the conspiracy.27

R ule 61 Counsel’s other ground for asserting ineffective assistanc e of counsel

c oncern ed the fact that Ms. Stephens

- Shockley did not testify. The D efense posits that putting a convicted liar on the witness stand would somehow make the
Defendant more credible. Defendant argues that if Ms. Stephens

- S hockley testified , she would have be en exposed as a woman who was trying to protect her boyfriend ( Rollins ) and that would have been helpful to the D efense. Rule 61 Counsel has not shown how a lying girlfriend could extricate Defendant from his participat ion with
another in a beating that was witnessed by his neighbor s
. Furthermore , at the time of trial, the State had not disclosed to the D efense
that Ms. Stephens

- Shockley had given a s econd, contradictory statement or that she
had been convicted of lying

. 72 Indeed, Rule 61 Counsel’s request for a court order appears to have been the impetus for this post

- trial disclosure. As such, Trial Counsel
could not conside r information that he did not have because it had been withheld
from him. Furthermore, Trial Counsel’s attempt to investigate Ms. Stephens

- Shockley
or her version of events was thwarted by her refusal to cooperate with a defense investigator. 73 Thus, w ithout disclosure from the State or the cooperation of Ms.

72 During trial, i t was also revealed that the State had not told the defense that an officer had a cellphone photo of the blood

- stained tan canvas belt.

73 Trial Counsel had sent an investigator to speak with Ms. Stephens

- Shockley but she would not speak with him.28

Stephens

- Shockley, Trial Counsel was only aware of her first statement and that she
had a black belt in her purse while leaving the area with Defendant and another. Her
second statement and guilty plea were only revealed after trial and, as such, could

n ot have been a factor in Trial Counsel’s consideration or decision concerning
whether to call her as a witness , and, in hindsight, they were unlikely to be helpful.
Trial Counsel explained that his general policy w as to present someone as a
defense w itness only if he can be certain that the witness would be beneficial to the
D efense

. Here, he did not know what s he would say on the witness stand , whether her testimony would be helpful , or whether she would try to protect herself and/or Rollins by shifting blame to the Defendant

. Contrary to Rule 61 Counsel’s claim that her testimony “would have offered an alternate, credible theory as to who inflicted the most serious injuries upon the victim” 74 , the issue was not comparative injuries inflicted by co

- conspirators. Furthermore, Ms. Stephens

- Shockley’s testimony might have weakened Defendant’s self

- defense strategy

. Trial Counsel
did not want to risk jury rejection of her credibility spilling over into reject ion of
Defendant’s self

- defense claim

. Trial Counsel’s belief that it would have been imprudent to call her as a D efense witness was not unreasonable

.

74 Def’s Amended Mot. at 29.29

Upon consideration of Defendant’s ineffective assistance of counsel claims,
the Court does not find that there was ineffective assistance of counsel or that the performance of Trial Counsel was substandard. The Court also does not find that
Defendant was prejudiced or prevented from having a fair trial. An analysis of the law concerning attorney performance leads to the conclusion that Defendant’s trial was fair, the jury reached its verdict after considering all of the evidence, and representation by Tri al Counsel was not unreasonable.
The record reflects that Defendant and Trial Counsel were able to communicate during months of trial preparation; Defendant was competent for trial;
and Defendant chose to testify at trial after discussion with his attorney

. The record also shows that Trial Counsel reviewed the evidence provided by the State and made a diligent effort to investigate the case. It is also clear that Trial Counsel acted responsibly during trial, presented a trial strategy, cross

- examined the S tate’s witnesses, questioned the value of certain State’s evidence, and vigorously defended
his client. In order for a defendant to establish ineffective assistance of counsel, the defendant must satisfy the two

- pronged standard created by the U.S. Supreme Court
in Strickland v. Washington , 75 “which requires that he prove that trial counsel’s

75 Strickland , 466 U.S. at 694 (“ The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”).30

performance was objectively unreasonable and that the defendant was prejudiced as
a result.” 76 The Delaware Supreme Court held that: Under the first prong, judicial scrutiny is highly deferential. Courts must ignore the distorting effects of hindsight and proceed with a strong presumption that counsel's conduct was reasonable. Under the second prong, [a defendant] must show a reasonable probability that, bu t for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Thus, [a]n error by counsel , even if professionally unreasonable , does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. 77 Moreover, “A defendant asserting a claim of ineffective assistance of counsel is required to make concrete allegations of cause and actual prejudice or risk summary
dismissal of the claim.” 78 T here is a strong presumption that counsel’s representation is competent and falls within the “wide range” of reasonable professional assist ance. 79 As such, deference must be given to counsel’s judgment in order to promote stability in the process. 80

76 Rodriguez v. State , 109 A.3d 1075, 1079 (Del. Jan. 29, 2015).

77 Id. at 1079 (internal quotation marks omitted ). See also Scott , 7 A.3d at 475

- 76; Zebroski v. State , 822 A.2d 1038, 1043 (Del. 2003); Duross , 494 A.2d at 1268

– 69 (Del. 1985); State v. Slade , 2002 WL 1974023, at *4 (Del. Super. Aug. 14, 2002); Strickland , 466 U.S. at 668 (1984); Harrington , 562 U.S. at 104; Premo , 562 U.S. at 121.

78 Winn v. State , 2005 WL 3357513, at *1 (Del . Dec. 8, 2005).

79 Premo, 562 U.S. at 121.

80 Id. at 125

- 26.31

Furthermore, i n order to show prejudice, the defendant must prove that, but for counsel’s errors, the result would have been different. 81 The Court does not need to be certain that counsel’s performance had no effect on the outcome. 82 However, there must be a substantial probability that there would have been a different result. 83 The test calls for the defendant to “make spe cific and concrete allegations of actual prejudice and substantiate them.” 84 Here, Trial Counsel’s p erformance was not substandard, did not fall below an “objective standard of reasonableness”, and there was no prejudice to the D efense. 85
Defendant’s Amen ded Motion lacks a factual basis, is contradicted by the record, and speculates as to the usefulness of such desired testimony. Trial Counsel was an active and engaged advocate. Pretrial, he communicated well with his client, investigated the charges, an d considered the probative value of the State’s discovery. At trial, counsel vigorously cross

- examined and challenged the State’s witnesses and evidence, raised issues of doubt, and made numerous objections concerning the

p resentation of the State’s case. Trial Counsel also presented several defense

81 Cullen , 563 U.S. at 189 (citing Strickland , 466 U.S. at 694).

82 Harrington , 562 U.S. at 111

- 12 (citations omitted).

83 Id.

84 Scott , 7 A.3d at 476.

85 Strickland , 466 U.S. at 687

- 88.32

witnesses, discussed with Defe ndant whether he should testify, and made an impassioned closing argument. Trial counsel’s strategy was to develop and present the weaknesses in t he State’s case. He advanced several theories for acquittal, including self

- defense, sloppy and unreliable police work, another assailant, and the absence of visible blood on the tan canvas belt. It is settled law that defense counsel is given wide latit ude in making tactical decisions. 86

Moreover , there is a “strong presumption that Trial Counsel’s conduct constitutes sound trial strategy” 87 and the court may not insist that “counsel confirm every aspect of the strategic basis for his or her actions

. ” 88 As such, the “distorting effects of hindsight” 89 should be eliminated and the court should not assume “sheer neglect

. ” 90 Instead, the reviewing court should “reconstruct the circumstances of counsel’s challenged conduct, and evaluate the conduct from counsel’s perspective
at the time

. ” 91

86 Harrington , 562 U.S. at 106; see also Flamer v. State, 585 A.2d 736 , 753

- 54 (Del. 1990).

87 Flowers , 150 A.3d at 282 (citing Strickland, 466 U.S. at 6 89))

.
88 Harrington, 562 U.S. at 108.

89 Strickland, 466 U.S. at 689.

90 Harrington, 562 U.S. at 108 ( citing Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ( per curiam ) )

.
91 Flowers, 150 A.3d at 288 ( citing Strickland, 466 U.S. at 689 )

.33

T rial Counsel did not fail to conduct a reasonable investigation and “under the circumstances, the challenged action ‘might be considered sound trial strategy’”. 92

Moreover , the D efense has not shown “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different” 93 or that confidence in the outcome of the case had been undermined. 94
Trial Counsel’s assistance was not ineffective and the re was no prejudice . Upon a full, thorough, and de novo review of the record, Defendant’s Amended Motion for
Postconviction Relief is DENIED

. As to Rule 61 Counsel’s request for an evidentiary hearing, the law is clear
that the Court has broad discretion when determining whether to hold an evidentiary hearing in connection with a postconviction motion. 95 After careful review of the record, the Court finds that the requested evidentiary hearing i s not “desirable” 96
because it is not necessary for a thorough resolution of the issues raised in

92 Strickland, 466 U.S. at 689.

93 Id. at 694.

94 Ploof v. State, 75 A.3d 840, 852 (Del. 2013).

95 State v. Jackson , 2008 WL 5 048424, at *33 (Del. Super. Nov.25, 2008).

96 Del. Super. Crim. R. 61(h)(1).34

Defendant’s Amended M otion for P ostconviction R elief 97 and Defendant’s Motion for an Evidentiary Hearing is DENIED. Accordingly, after a full, careful, thorough, and de novo review of the rec ord and submissions, Defendant’s Amended Motion for Postconviction Relief is
DENIED. Defendant’s Motion for an Evidentiary Hearing is DENIED.
IT IS SO ORDERED.



## /s/ Diane Clarke Streett Diane Clarke Streett, Judge

97 See Morla v. State , 2008 WL 2809156, at *1 (Del. July 22, 2008) (affirming the trial court's determination that a hearing pursuant to Rule 61(h) was not necessary); Washington v. State , 2007 WL 4110636 (Del. Nov. 20, 2007) (holding that “it was within the Superior Court's d iscretion to decide his postconviction motion without an evidentiary hearing”).