State of Delaware v. Collins. ( 2015 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE, )
)
v. )
)
SOLOMON COLLINS, ) ID NO. 0910019961
)
Defendant. )
Date Submitted: October 30, 2014
Date Decided: January 30, 2015
On Defendant’s Motion for Post Conviction Relief. DENIED.
ORDER
Patrick J. Collins, Esq., 8 East 13th Street, Wilmington, Delaware, 19801.
Attorney for Defendant.
Scott D. Goodwin, Esq., Deputy Attorney General, Delaware Department of
Justice, Carvel State Office Building, 820 N. French Street, Wilmington,
Delaware 19801. Attorney for the State.
Scott, J.
Introduction
Before the Court is Defendant Solomon Collins’ (“Defendant”) Motion for
Post Conviction Relief filed on September 16, 2013. The Court has reviewed the
parties’ submissions. For the following reasons, Defendant’s Motion for Post
Conviction Relief is DENIED.
Background
Defendant was tried before a jury in March of 2011. Violet Gibson and
Shakira Romeo – both eye witnesses to the offense – testified for the State at
Defendant’s trial. Both witnesses had also been interviewed by Detective Conner
of the Wilmington Police Department after the incident. However, the statements
the witnesses gave to Det. Conner conflicted with their in-court testimony. Det.
Conner also testified for the State at Defendant’s trial, and both witnesses’ out-of-
court statements to Det. Conner were admitted into evidence during his testimony,
over defense objection.
The jury found Defendant guilty of Murder First Degree (non-capital), three
counts of Reckless Endangering First Degree, two counts of Possession of a
Firearm During the Commission of a Felony (PFDCF), and one count of
Possession of a Deadly Weapon by a Person Prohibited (PDWBPP) relating to the
shooting death of Tommear Tinnin. On July 15, 2011, Defendant was sentenced
to life in prison at Level 5 on the Murder First Degree conviction and ten years in
2
prison at Level 5 on the weapons conviction and six years in prison at Level 5 on
the Reckless Endangering convictions.
On July 29, 2011, Defendant filed a direct appeal of his convictions with the
Delaware Supreme Court. The Delaware Supreme Court affirmed Defendant’s
convictions and sentence on direct appeal.
On September 16, 2013, Defendant filed his first Motion for Post Conviction
Relief. On September 18, 2013, the Superior Court directed the Office of Conflict
Counsel to appoint counsel for Defendant for purposes of representation in his
Rule 61 Motion for Post Conviction Relief.
Discussion
As an initial matter, the Court finds that Defendant’s motion is not
procedurally barred under Del. Super. Ct. Crim. R. 61(i).1 The Court will now
address the merits of Defendant’s motion. To prevail on a claim of ineffective
assistance of counsel, a defendant must meet the two-pronged test established by
the United States Supreme Court in Strickland v. Washington.2 Under Strickland,
a defendant must show that (1) his counsel’s representation fell below an objective
standard of reasonableness, and (2) that the deficient performance prejudiced the
defense. 3 Counsel’s actions are afforded a strong presumption of reasonableness
1
See Younger v. State, 580 A.2d 552, 554 (Del. 1990) (“This Court applies the rules of
procedural requirements before giving consideration to the merits of the underlying claim for
post conviction relief.”)
2
466 U.S. 668 (1984).
3
Id. at 687-88.
3
because it is “all too easy for a court examining counsel’s defense after it has
proved unsuccessful” to succumb to the “distorting effects of hindsight.”4 The first
prong of Strickland therefore requires the use of an objective standard of
reasonableness based on prevailing professional norms when evaluating an
attorney’s conduct. 5 “[T]he mere fact that counsel failed to recognize the factual
or legal basis for a claim, or failed to raise the claim despite recognizing it does not
constitute” deficient performance. 6 The United States Supreme Court has stated
that “‘the purpose of the effective assistance guarantee of the Sixth Amendment is
not to improve the quality of legal representation …. [but] simply to ensure that
criminal defendants receive a fair trial.’” 7 Based on that policy, “[t]he benchmark
for judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.” 8 A court must “judge the
reasonableness of counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct.” 9 If the defendant fails to satisfy either
prong of the Strickland test, the ineffective assistance of counsel claim necessarily
fails.
4
Id. at 689.
5
Neal v. State, 80 A.2d 935, 942 (Del. 2013).
6
Murray v. Carrier, 477 U.S. 478, 486-87 (1986).
7
Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (quoting Strickland, 466 U.S. at 689).
8
Pinholster, 131 S. Ct. at 1403 (citations omitted).
9
Strickland, 466 U.S. at 690.
4
Once a defendant successfully demonstrates that his counsel’s conduct fell
below an objective standard of reasonableness, the Court then moves to the second
prong of the Strickland test. Under the second prong of Strickland, the Court will
only set aside the judgment of a criminal proceeding if the defendant was
prejudiced by the deficient performance. In other words, the Court will not set
aside the judgment if the error had no effect on the outcome of the proceeding.10
In order to show prejudice, the defendant must establish “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 11 A reasonable probability of a different
result requires a “probability sufficient to undermine confidence in the outcome.”12
This standard requires more than a mere showing that the conduct “could have or
might have or it is possible that [it would have]” led to a different result. 13 “The
likelihood of a different result must be substantial, not just conceivable.” 14
When evaluating an appellate counsel’s conduct for ineffective assistance, a
reviewing court applies the same Strickland test applicable to trial counsel.15
However, the defendant must “show that his counsel was objectively unreasonable
in failing to find arguable issues to appeal – that is, that counsel unreasonably
10
Id. at 691.
11
Id. at 694.
12
Id.13
Ploof v. State, 75 A.3d 840, 867 (Del. 2013).
14
Harrington v. Richter, 131 S. Ct. 770, 792 (2011) (citations omitted).
15
Neal, 80 A.3d at 946 (citations omitted).
5
failed to discover nonfrivolous issues and to file a merits brief raising them.” 16
The United States Supreme Court has recognized that appellate counsel “need not
(and should not) raise every nonfrivolous claim.” 17 For that reason, it is “possible
to bring a Strickland claim based on counsel’s failure to raise a particular claim,
but it is difficult to demonstrate that counsel was incompetent.” 18 It is “much
easier for a defendant to satisfy the first prong of Strickland where he claims that
his appellate counsel completely failed to file a merits brief.” 19 However, where
counsel did file a merits brief, the defendant faces a “tougher burden of showing
that a particular nonfrivolous issue was ‘clearly stronger than issues that counsel
did present.’” 20
Defendant raises two claims in this motion for post conviction relief. First,
Defendant’s motion alleges that his appellate counsel was ineffective for failing to
argue on direct appeal that Romeo’s out-of-court statements were inadmissible
under 11 Del. C. § 3507 because they violated the “narrative interpretation” rule.
Similarly, Defendant’s second ineffective assistance of counsel claim alleges that
his trial counsel was ineffective for failing to object to Det. Conner’s testimony
regarding Gibson’s out-of-court statements under the same rules.
16
Smith v. Robbins, 528 U.S. 259, 285 (2000).
17
Id. at 288.
18
Id.19
Neal, 80 A.3d at 946.
20
Id. (quoting Smith, 528 U.S. at 288).
6
Pursuant to 11 Del. C. § 3507, Delaware law provides that, with a proper
foundation, a witness’ voluntary out-of-court prior statement is admissible even
though the statement would be inadmissible under the Delaware Rules of
Evidence.21 However, the Delaware Supreme Court has emphasized that “[i]t is
the statement of the declarant that is being admitted, not the interpretive narrative
of the person who heard the statement. Care should be taken to guarantee that the
Statute is not abused by permitting a witness, such as a police officer, to embellish
the prior statement by his own interpretation.” 22 To ensure that it is the witness’
statement that is admitted into evidence, the actual words should be documented in
writing or recorded. 23 However, even in the absence of a verbatim written, audio
or video record, the Delaware Supreme Court has held that the admission of a
witness’ statement, as recorded in an agent’s shorthand notes, was not an abuse of
discretion where the agent had written down words used by the witness which
provided the agent with factual information that the agent though was important to
record.24
As to Defendant’s first claim, his appellate ineffective assistance of counsel
claim asserts that his appellate counsel was ineffective for failing to argue on direct
appeal that the out-of-court statements made by Romeo were inadmissible under
21
Hassan-El v. State, 911 A.2d 385, 395 (Del. 2006).
22
Id. at 396.
23
Morgan v. State, 922 A.2d 395, 399 (Del. 2007) (citing Flonnery v. State, 893 A.2d 507, 524
n.30 (Del. 2006)).
24
Flonnery, 893 A.2d at 522-24.
7
11 Del. C. § 3507 because the out-of-court statements consisted only of the police
officer’s narrative interpretation of the witness’ statements. 25 Further, Defendant
argues that he was prejudiced by this deficient performance because there is a
reasonable probability that Defendant would have been granted a new trial if the
claim had been successfully pursued.26 The sole issue at trial was the identity of
the shooter. Det. Conner’s testimony that Romeo had identified Defendant as the
shooter was powerful evidence that the jury never should have heard. Defendant
also argues that the jury likely gave greater weight to Det. Conner’s testimony, as
compared to the conflicting identification testimony of lay eye witnesses because
of his status as a police officer, and that Det. Conner’s testimony tipped the
identification evidence in the State’s favor.
On Defendant’s direct appeal, his appellate counsel raised three claims,
arguing that: (1) there was an insufficient foundation to admit into evidence
Gibson’s out-of-court statement; (2) there was an insufficient foundation to admit
into evidence Romeo’s out-of-court statement; and (3) the trial judge erred in
administering an Allen charge to the jury which, as administered, was coercive. 27
Success on any of these three claims would have resulted in a new trial for
Defendant.
25
Def. Mot. for Post-Conviction Relief at 2, 6-8.
26
Id. at 8.
27
See Collins v. State, 56 A.2d 1012 (Del. 2012).
8
Despite Defendant’s contention that his interpretive narrative argument is “at
least as strong, if not stronger”28 than the issues actually raised on appeal,
Defendant has not demonstrated that this argument is “clearly stronger” than those
issues. Defendant asserts that Det. Conner’s testimony as to Romeo’s prior
statement constitutes a narrative interpretation because one page of Det. Conner’s
notes state only that Romeo “ID’d [Defendant]” but did “not say that Romeo
identified [Defendant] as the shooter.” 29 However, Defendant omits Det. Conner’s
other notes, which were part of the contemporaneous record of Romeo’s words
written directly on the line-up next to Defendant’s picture.
Detective Conner conducted the interview with Romeo and testified on voir
dire that he made handwritten notes during the interview, recording information
and descriptions given by Romeo. 30 At trial, he also identified State’s Exhibit 84
as the photo line-up he has shown to Romeo during the interview.31 Det. Conner
testified that he told Romeo that he was showing her the line-up in connection with
the shooting and asked her “to point out if she recognized anyone in the line-up
and how she recognized them.” 32 As Romeo pointed out three different people in
the line-up that she recognized, Det. Conner recorded the “words she said” directly
28
Def. Mot. for Post Conviction Relief at 7.
29
Id.30
March 24, 2011 Trial Transcript at 48-50.
31
Id. at 47.
32
Id. at 52.
9
onto the line-up, which are “written by the various pictures.” 33 The Court ruled
that Det. Conner could give testimony regarding Romeo’s out-of-court statement to
the extent supported by his notes, ruling that:
Now on this one I will not allow anything that’s an interpretation.
However, I think his notes support some specific answers, the notes
written in dealing with the photo line-up …. But direct questions that
are supported by his notes, I will allow an answer to. 34
On direct examination, Det. Conner testified that Romeo had identified a photo of
Defendant as the shooter and the person who had been wearing a “brown
hoodie.”35 Det. Conner’s record of Romeo’s identification, written directly on the
line-up next to Defendant’s picture, included the words “Shooter” and “Brown
Hoodie.” 36
Had Defendant’s argument been raised on appeal, the trial court’s ruling on
the admissibility of a § 3507 statement would have been reviewed by the Delaware
Supreme Court on an abuse of discretion standard, and reversed only if the
Supreme Court found that the trial court’s decision to admit Romeo’s statement
was “clearly erroneous.” 37 At trial, Det. Conner’s testimony regarding Romeo’s
out-of-court statements was specifically limited to answering direct questions
which were supported by his notes made on the photo line-up. The purpose of the
Court’s restriction on Det. Conner’s testimony regarding Romeo’s statements was
33
Id. at 47, 51-52.
34
Id. at 56.
35
Id. at 68.
36
Exhibit A to State’s Response.
37
See Flonnery, 893 A.2d at 515.
10
to ensure that Det. Conner could only testify as to the limited recording he made of
Romeo’s statements, 38 and not infuse his interpretation. Based on the Court’s
restriction on Det. Conner’s testimony at trial and the Flonnery Court’s holding on
the admissibility of shorthand notes, Defendant cannot meet the stringent burden of
showing that the admission of Romeo’s identification of Defendant as the
“Shooter” was clearly erroneous. Nor has Defendant shown that raising that
argument on appeal would be “clearly stronger” than the three claims actually
raised by appellate counsel. For this reason, Defendant has not met the heightened
burden of showing that appellate counsel was unreasonable for failing to include
this issue in the merits brief. Accordingly, Defendant has failed to demonstrate
deficient performance under the first prong of Strickland.
Moreover, Defendant has failed to demonstrate prejudice under the second
prong of Strickland because he cannot show that had it been raised on appeal, there
is a reasonable probability that Defendant’s narrative interpretation argument
would have prevailed. In his affidavit, appellate counsel admits that in retrospect,
he should have raised Defendant’s current narrative interpretation claim on direct
appeal because there was no reason not to. 39 However, to satisfy the prejudice
prong under Strickland, Defendant must show a “substantial” likelihood of a
38
The recording is Det. Conner’s written notes on the photo line-up that were made
contemporaneously with Romeo’s statements.
39
Appellate Counsel’s Affidavit.
11
different result, not merely a “conceivable” one. 40 Defendant cannot demonstrate a
substantial likelihood that the Delaware Supreme Court would have found that the
admission of Romeo’s statement was clearly erroneous under § 3507 because
Romeo’s identification of Defendant as the shooter is expressly recorded in Det.
Conner’s line-up notes. Accordingly, Defendant failed to satisfy either prong of
the Strickland test for his ineffective assistance of counsel claim against his
appellate counsel.
As to Defendant’s second claim, his trial ineffective assistance of counsel
claim asserts that his trial counsel’s failure to object to Det. Conner’s testimony
regarding Gibson’s prior statement was ineffective because Det. Conner’s
identification testimony was inadmissible under 11 Del. C. § 3507 because the out-
of-court identification made by Gibson contradicted Det. Conner’s narrative
interpretation of her out-of-court statement.41 Defendant asserts that he was
prejudiced by this deficient performance for the same reasons set forth in his claim
against appellate counsel. Det. Conner’s testimony that Gibson had identified
Defendant as either the shooter or with the shooter was powerful evidence that the
jury never should have heard, and the jury likely gave more weight to Det.
Conner’s testimony because of his status as a police officer. 42
40
Harrington, 131 S. Ct. at 792.
41
Def. Mot. for Post-Conviction Relief at 3-4.
42
Id. at 8.
12
Defendant’s claim against his trial counsel is based solely on the argument
that Det. Conner’s recitation of Gibson’s statement constituted an “interpretive
narrative” because Gibson, after indentifying Defendant as “either the shooter or
the guy with the shooter,” arguably contradicted herself by adding, “but he didn’t
have nothing to do with it.” 43 However, Defendant’s argument fails because the
mere presence of contradiction or ambiguity within Gibson’s recorded statement
does not transform Det. Conner’s recitation of a portion of that statement into an
interpretive narrative. Further, in his affidavit, trial counsel observed that “it is not
clear to [me] how Detective Conner is expressing his narrative opinion of what he
has been told, in that his testimony mirrors that statement provided by Ms.
Gibson.”44 Rather than contest Gibson’s statement on these grounds, Defendant’s
trial counsel adopted the strategy of attacking the credibility of Gibson’s
identification of Defendant.45 Defendant has failed to meet his burden under
Strickland of proving either ineffective assistance or prejudice therefrom because
Det. Conner’s recitation of Gibson’s out-of-court statement did not constitute an
interpretive narrative, and Defendant has offered no evidence to rebut the
presumption that trial counsel’s trial strategy was reasonable.
43
Id. at 4.
44
Trial Counsel’s Affidavit at 2.
45
Id. at 2-3.
13
Conclusion
For the foregoing reasons, Defendant’s Motion for Post-conviction Relief is
DENIED.
IT IS SO ORDERED.
______________________
Judge Calvin L. Scott, Jr.
14