Holmes v. State ( 2016 )

IN THE SUPREl\/IE COURT OF THE STATE OF DELAWARE
COREY HOLMES, §
§ No. 438, 2015
Defendant Below- §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§
STATE OF DELAWARE, § ID No. 0901020659
§
Plaintiff Below- §
Appellee. §
Submitted: Febr'uary 17, 2016
Decided: March l4, 2016
Before STRINE, Chief Justice, VALII-IIJRA, and VAUGHN, Justices.
ORDER
On this 14"‘ day of March 20l6, it appears to the Court that:
( l) Defendant-Below/Appellant Corey Holmes appeals from a Superior Court
order denying his second amended motion for post conviction relief. He states three
claims. First, he contends that his trial counsel was ineffective by failing to move to
suppress his statement to police and failing to request a limiting instruction regarding
the use of the statement at trial. Second, he contends that trial counsel was ineffective
when he failed to object to a curative jury instruction during closing arguments.
Finally, he contends that the cumulative effect of the first two claims warrants a new
trial. We find no merit to Holmes’s appeal and affirm.
(2) On January 27, 2009, Resean Freeman offered Holmes a ride after Freeman
saw him walking on the side of Route 13 in New Castle, Delaware. After entering the
vehicle, Holmes pointed a weapon at Freeman, ordered him out of the car, and then
drove away. Holmes later called Freeman and told him where his car was located.'
(3) On the same evening that Holmes took Freeman’s car, Madinah Elder and
Harry Smith heard a knock at their door in Wilmington, Delaware. Upon opening the
door, Holmes pointed a gun at Smith and began demanding money. After handing
over some money, Elder fled the home and notified the police. Holmes was
apprehended after a police officer followed footprints leading from Elder’s home. He
was charged with offenses related to the robbery. On February 4, 2009, Holmes was
appointed counsel and a preliminary hearing was held.
(4) In the meantime, Freeman identified Holmes as the person who took his car.
The police interrogated Holmes regarding this incident on February 19, 2009.2 After
reading the Miranda rights, the officer asked Holmes if he understood them. Holmes
replied, "Yes.’° Holmes then asked if he had charges, and the officer clarified that
' Although the incident occurred on January 27, Freeman did not notify the police until a week later
after Freeman recognized Holmes in a newspaper article.
3 A redacted version of Holmes’s statement was admitted at trial in two parts, one being forty-five
minutes and the other five minutes. While Holmes quotes the non-redacted version of his statement
on appeal, neither a transcript nor the audio recordings of the redacted or non-redacted version were
included in the appendix.
3 Appellant’s Op. Br. at 8.
coercion, or deception . . . [and] must have been made with a full awareness of both
the nature of the right being abandoned and the consequences of the decision to
abandon`` ."2°
(l 8) Here, Holmes fails to show how his trial counsel’s assistance was deficient
under the first prong of Srricklana'. Holmes’s trial counsel asserted in a Rule 61(g)
affidavit in the Superior Court that he did not file a motion to suppress because he
determined that Holmes’s constitutional rights were not violated. The record supports
this contention. First, Holmes was read his Miranda rights on the audio recording
of the interrogation. The officer then asks, "Understand all that‘? That’s a yes‘?" to
which Holmes replies, "Yes."” Holmes then tells the officer that he "do[esn]’t know
what’s goin [sic] on yet,"z“
and the officer tells him the questions are about a
carjacking. After Holmes claims his innocence, the officer again asks, "Are you
willing to talk to me then?"z° Holmes replied aftirmatively. Holmes points to no
evidence of coercion, intimidation, or deception by the police in obtaining this
explicit waiver.
26 Hzlbbard v. Sfafe, 16 A.3d 912, 917 (D€l. 201]).
37 Appellant’s Op. Br. at 8.
28
=" 1a
ll
( 1 9) Further, the police attempted to clarify Holmes’s intentions aHer he said,
"I think I’m gonna need a lawyer or something man because I don’t know what . . ."3°
The officer stopped questioning Holmes and stated: "Listen, here’s the deal. You
have a right to get a lawyer. 1 told you in the beginning. You have the right . . . ."3‘
Holmes then interrupted the officer and said, "I don’t know how people canjust say
I done something."” Here, Holmes did not unequivocally invoke his right to an
attomey, but the officer still sought clarification by reminding Holmes of his right to
counsel. Holmes cut the officer’s reminder short and continued to talk. 'I``he totality
of the circumstances clearly show that Holmes knew of, and chose not to invoke, his
Miranda rights,
(20) Holmes also contends that his Sixth Amendment right to counsel was
violated when he was questioned by the officer because he had already been
appointed counsel at his preliminary hearing regarding the charges relating to the
robbery. "[A]n accused who is admonished with the [Miranda] warnings . . . has
been sufficiently apprised of the nature of his Sixth Amendment rights, and of the
consequences of abandoning those rights, so that his waiver on this basis will be
considered a knowing and intelligent one."” First, the officer approached Holmes
’° Id. at 9.
31
32
33 Turner v. Srale, 957 A.2d 565, 574 (Del. 2008).
12
regarding the carjacking, a crime with which Holmes had not been charged. After
waiving his Miranda rights, Holmes volunteered information related to the robbery,
which acted as a waiver of his Sixth Amendment right to counsel regarding the
robbery charges.
(21) Holmes also claims that trial counsel was deficient when he failed to
request a limiting instruction that Holmes’s statement to police could only be used for
impeachment purposes. Holmes gave his statement to police after a knowing and
voluntary waiver of his Miranda rights. Holmes has not asserted any reason for
which trial counsel could request a limiting instruction, and therefore it was
objectively reasonable that he did not request a limiting instruction.
(22) Even if Holmes’s trial counsel was objectively unreasonable, Holmes has
failed to establish prejudice under Strz°ckland. Holmes chose to testify at trial and
admitted taking Freeman’s car and taking drugs from Elder’s home. The only true
issue was that Holmes denied having a weapon during the carj acking and the robbery.
Holmes fails to show how excluding his statements to police or providing a limiting
instruction would have changed the outcome at trial since he always maintained that
he did not have a weapon. Therefore, Holmes’s first claim is without merit.
(23) In his second claim, Holmes argues that the jury was unable to fairly
consider his argument that he was not guilty of carjacking first degree, robbery first
13
degree, and the other weapons-related offenses but only of the lesser-included charges
of carjacking second degree and theft because the Superior Court disrupted his
counsel’s closing arguments, and admonished his counsel in the jury’s presence, on
the ground that Holmes was seeking to use an inapplicable "choice-of-evils" defense
to win an acquittal. We have reviewed the record carefully and agree with Holmes
that his counsel never asked for a "choice-of-evils" instruction nor did he attempt to
make such an argument.
(24) As important, in his direct appeal, Holmes argument was not that he was
unfairly impeded from presenting a "choice-of-evils" defense.s" lt was that the trial
court’s interruption of his counsel’s closing, and that its suggestion that Holmes’s
counsel was not diligent, undermined his counsel’s credibility and compromised the
jury’s ability to understand that if it determined that Holmes did not have a weapon
and that he stole the car in order to avoid an attack by Freeman, it should convict
Holmes of the lesser-included offenses of carjacking second degree and theft but
acquit him of the weapons-related offenses.”
34 Appellant’s Op. Br. at 14-19.
”Id. at 18-19:
The explanation by the trial judge . . . made it appear that the [choice-of-
evils] defense was not available due to a lack of diligence by the defense
counsel. The instruction was not requested because it did not fit the case.
Holmes was not arguing that his use of force was justified; he was arguing he
did not use force. ln each crime, he conceded taking someone else’s property
but denied using a gun. The difference in the crime is [] very significant and
14
(25) Although we agree with Holmes that his counsel ’s argument was confused
by the trial court“ and then by this Court on direct appeal,” we nonetheless find no
basis for relief. A fair reading of the record indicates that before and after the
interruption, Holmes’s counsel was able to fully argue Holmes’s version of
events_specifically, that Holmes had no weapon and took the car to get away from
Freeman’s threatening behavior-and that if the jury embraced that, it should acquit
him on the more serious charges.” Furthermore, the trial court gave an instruction
on the lesser-included charges.°‘° Given these realities, we find no basis to conclude
that Holmes was prejudiced by the trial court’s interruption and admonishment based
on the State’s objection.
(26) Because Holmes failed to establish that his counsel was ineffective in his
first two claims, his third claim fails without h.lrther analysis.
the difference in sentencing even more significant
36 See Appellant’s Op. Br. App. at A24l -42.
37 See Holmes, 2010 WL 50439]0, at *5 ("Holmes next argues that the Superior Court erred in
refusing to allow him to argue a choice-of-evils defense.").
33 Appellant’s Op. Br. App. at A238-45.
39 Id. at A225-27 (iristructing the jury in regards to carjacking second degree, theft, and burglary
second degree).
15
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY TI-HE COURT:
he was informing Holmes of his rights before he talked to him. The officer asked
Holmes again if he was willing to talk about what happened. Holmes responded: "I
don’t know what’s goin [sic] on yet." The officer explained again that he had
questions about a carjacking. Ultimately, Holmes agreed to speak with the officer
and signed a written waiver of his Miranda rights.
(5) Holmes discussed the carjacking with the officer and also volunteered
statements regarding the robbery. He told the officer that he did not rob Elder and
was at her home to purchase drugs. He told the officer that he knew Freeman and had
contacted him to purchase drugs as well. According to Holmes, Freeman picked him
up so that the two men could go retrieve the drugs. Holmes then told the officer that
he became uncomfortable and asked Freeman to drive him home. At this point, the
following exchange occurred:
Holmes: I think I’m gonna need lawyer or something man
because I don’t know what . . .
Officer: Listen, here’s the deal. You have a right to get a
lawyer. I told you that in the beginning. You have
the right . . .
Holmes: I don’t know how people can just say I done
something.
Officer: Well that’s why I’m here to talk to you.
Holmes: But, I’m already charged with that.
Officer: You’re already charged with it, but, this has a long
process to go through, alright. There is a long
"Ici.
process. I still have to talk to the Attorney General’s
Ot``fice about all this and tell them my case. Then
they’re going to look at it and decide whether to
keep going with the charges or not.
Holmes: Please help me man. Please help me.§
(6) Although the officer repeated Holmes’s right to counsel, Holmes did not
invoke that right. As Holmes continued talking with the officer, he admitted that he
met with Freeman to purchase drugs but ultimately stole the drugs and left in
Freeman’s car. He also said that he called Freeman later to let him know where to
pick up his car. Atter the interview, Holmes was charged with offenses related to the
carjacking. Those charges were then consolidated with the robbery charges.
(7) At trial, as part of the State’s case, Freeman testified that he saw Holmes
walking on the side of the road and offered to give him a ride. Freeman then testified
that, once in the car, Holmes pulled out a gun and said, "Get . . . out of the car you
bitch ass."° Freeman complied and Holmes drove off. The State also called Elder
and Smith. Both testified that Holmes knocked on their door and entered with a gun.
Elder testified that she was able to flee the home while Holmes was distracted.
(8) In his defense, Holmes testified that he intended to meet Freeman to
purchase drugs but when they met, he took the drugs from Freeman. He then said that
5 Id. at 9.
° Appellant’s Op. Br. App. at A94.
Freeman was coming for him, so he took Freeman’s car without his permission. He
also testified that he went to Elder’s home to purchase drugs. He stated that Elder had
shorted him on the amount, so he took the drugs without paying. Throughout his
testimony, Holmes denied having a weapon during either incident.
(9) During closing arguments, the State objected when defense counsel referred
to Freeman coming after Holmes. The State believed that defense counsel was
beginning to argue a "choice of evils" defense. Defense counsel had previously,
during trial, been instructed by the trial court that if he wished to present a "choice-of~
evils" defense, he was required to submit a proposed instruction in writing. At a side
bar, the State asserted that defense counsel was presenting a "choice-of-evils"
argument in his closing. In response the trial court stated: "He’s not that far yet. . .
If it comes next, I will instruct thejury exactly what happened yesterday. Understand
that is not a defense."? Defense counsel then continued with his closing argument
So, [Holmes] tells you that [Freeman] comes around the car, and
is coming after him, and he jumps - goes around the car, jumps in
the car and drives off. And that’s how he ends up behind the
wheel, and that’s how he ends up driving away, because he wants
to get away from [Freeman].s
7 ld. at A24I.
3 Id.
The State objected a second time. In response, the trial court instructed thejury as
follows:
Yes. Ladies and gentlemen, there is a defense in our Criminal
Code that is entitled Choice of Evils, and, I won’t explain it to
you because it’s not in this case. We discussed it among counsel
yesterday during our conference about instructions, and [defense
counsel], and 1 told [defense counsel] that if he wanted an
instruction on that defense which has lots of elements to it, just
like there are lots of elements to the crime, that he should present
a written request in writing for an instruction which he declined
to do. So that concept is simply not in this case, and the jury may
not consider that the defendant was in some kind of bind, andjust
had to do what he did with regard to taking the car. That’s a
conceivable defense if a lot of technical things are proven, but it’s
not in this case.°
(10) The jury returned a verdict finding Holmes guilty of Carjacking First
Degree,'° five counts of Possession of a Firearrn During the Commission of a
Felony,' ' two counts of Robbery First Degree,'z one count of Burglary First Degree,”
one count of Attempted Robbery First Degree,"‘ and one count of Possession of a
Deadly Weapon by a Person Prohibited.'$ Holmes was sentenced to forty-two years
incarceration, suspended after thirty-seven years.
9 fd. at A24l-242.
m ll Del. C. § 336.
" ll Del. C. § ]447}\.
12 ll Del. C. 331
" 11 Del. c § 326.
" ll Del. C. §531.
'5 ll Del. C. § 1448.
(l l) In 2010, Holmes filed a direct appeal asserting that the trial court erred:
(l) in admitting into evidence a newspaper article conceming the carjacking and
robberies that Freeman had used to identify Holmes; and (2) mischaracterizing the
defense as a "choice of evils" defense to the jury, when that was not the defense that
he was arguing at all.'° This Court determined that the admission of the newspaper
article without a limiting instruction was harmless error. This Court further
concluded, as to Holmes’s second contention, that he was not entitled to a "choice of
evils" instruction. As discussed below, it appears that this Court did not correctly
understand Holmes’s second contention. His conviction was affirmed."'
(l 2) Holmes then filed a pro se motion for postconviction relief claiming two
instances of ineffective assistance of counsel, prosecutorial misconduct, and abuse
of discretion on the part of the trial court. On June 7, 2012, the trial court adopted a
Commissioner’s recommendation and denied Holmes’s motion. In May 2013, this
Court reversed the trial court’s denial after finding that Holmes was entitled to
'° In Delaware, the "choice-of-evils" defense is codified under ll Del. C. § 463, which states:
[C]onduct which would otherwise constitute an offense is justifiable when it
is necessary as an emergency measure to avoid an imminent public or private
injury which is about to occur by reason of a situation occasioned or
developed through no fault of the defendant, and which is of such gravity
that, according to ordinary standards of intelligence and morality, the
desirability and urgency of avoiding such injury clearly outweigh the
desirability of avoiding the injury sought to be prevented by the statute
defining the offense in issue.
" Holmes v. State, 2010 WL 50439]0 (Del. Dec. 9, 20l0).
7
representation during postconviction proceedings pursuant to a recent amendment to
Superior Court Criminal Rule 61 .‘8 With the assistance of appointed counsel, Holmes
filed a second amended motion for postconviction relief on November 27, 2013.
(l3) In April 2015, a Superior Court Commissioner filed his report (the
"Report") recommending that Holmes’s amended motion for postconviction relief be
denied. The Commissioner found that Holmes’s statements to police were voluntary,
and therefore the ineffective assistance claim regarding the statements was
unjustified. The Commissioner reasoned that nothing in the record suggested that
Holmes was coerced or tricked into speaking to the officer. Additionally, the officer
continued to remind Holmes of his right to counsel and asked Holmes several times
if he was willing to talk. The Commissioner also discussed the fact that Holmes had
extensive prior involvement with the criminal justice system: forty-seven arrests for
Title ll offenses and twenty-one arrests for Title 16 offenses. The Commissioner
concluded that the totality of the circumstances suggested that Holmes understood his
rights and that he waived them voluntarily. Because his statements were voluntary,
the Commissioner held that Holmes’s trial counsel was not ineffective. The
Commissioner also held that Holmes was not able to demonstrate any prejudice that
resulted from his trial counsel ’s actions. The Commissioner reasoned that in applying
'8 Holmes v. State, 2013 WL 2297072, at *l (Del. May 23, 2013).
8
the second prong of Strickland, the "Court cannot see how any actions or words by
Counsel could have prejudiced thejury more so than the Defendant’s own voluntary
testimony."'°
( 14) The Commissioner also concluded that the remainder of Holmes’s
amended motion rehashed arguments already decided on direct appeal. Holmes
argued that this Court was "clearly in error" when it affirmed his conviction in 2010
regarding the "choice-of-evils" issue. The Commissioner disagreed with Holmes, and
found that even if the claim were to be decided on its merits, Holmes again failed to
establish the prejudice required by Strickland. Given the testimony presented at trial,
the jury had enough information to convict Holmes, The Commissioner found it
doubtful that any statements made by the trialjudge conceming the "choice-of~evils"
defense had any effect on the jury.
(15) Based on the findings of the first two claims, the Commissioner found no
merit to Holmes’s cumulative effect claim. On July 23, 2015, the trial court adopted
the Commissioner’s Report and Recommendation and denied Holmes’s motion for
postconviction relief. This appeal followed.
'° Appellant’s Op. Br., Ex. A at l4.
(16) This Court reviews the Superior Court’s denial of a motion for
postconviction relief for an abuse of discretion.z° "To prevail on a claim of
ineffective assistance of counsel under Strickland, [a defendant] must show that there
was (l) deficient attomey perfonnance, i.e., Trial Counsel’s performance fell below
an objective standard of reasonableness, and (2) prejudice resulted from that deficient
perforrnance."z'
"A defendant must make specific allegations of actual prejudice and
substantiate thern."” "[A] ny ‘review of counsel ’s representation is subject to a strong
presumption that the representation was professionally reasonable."’”
(17) Holmes claims that the admission of his February 19, 2009 statement to
the police violated his rights under both the Fifth and Sixth Amendments of the U.S.
Constitution and the corresponding provisions of the Delaware Constitution. "Under
the Delaware Constitution, . . . ‘if a suspect attempts to invoke [his or her] Mr'randa
rights during an interrogati0n, but does not do so unequivocally, the police must
clarify the suspect’s intention before continuing with the interrogation."’z" "[A]
finding of ambiguity rests on the totality of the circumstances . . . ."25 The waiver
must be "the product of a free and deliberate choice rather than intimidation,
3° Gattis v. Stale, 955 A.2d 1276, 1280-81 (Del. 2008).
2' Stevenson v. Sta!e, 2016 WL 258783, at *2 (Del. Jan. 19, 2016).
32 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
23
24 Garvey v. S!a!e, 873 A.2d 291, 296 (Del. 2005).
15 Id. al 297.
10