State v. Matthews ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
) C.A. No.: 1806004163
v. )
)
SHAHEED MATTHEWS, )
)
Defendant. )
Date Submitted: October 20, 2022
Date Decided: January 3, 2023
Opinion and Order Upon Consideration of Defendant’s Pro Se
Motion for Postconviction Relief
DENIED.
Matthew Bloom, Deputy Attorney General, Delaware Department of Justice,
820 N. French Street, 7th Floor, Wilmington, Delaware 19801.
Shaheed Matthews, Pro Se Defendant, SBI No.: 00617849, James T. Vaughn
Correctional Facility, Smyrna, Delaware 19977.
Jones, J.
INTRODUCTION
A Superior Court grand jury indicted Shaheed Matthews in connection with
the death of Antoine Terry, charging him with Murder First Degree, Possession of a
Firearm During the Commission of a Felony (“PFDCF”), Possession of a Firearm
by a Person Prohibited (“PFBPP”), and Purchase of Ammunition by a Person
Prohibited (“PABPP”). The State later nolle prossed the PABPP charge1 and
severed the person-prohibited charges for separate trials.2
The case against Mr. Matthews proceeded to a jury trial on the Murder First
Degree and PFDCF charges in April 2019.3 The jury convicted Mr. Matthews of
both counts.4 Following the verdict, the Court held a bench trial on the severed
PFBPP charge and found Mr. Matthews guilty.5 The Court sentenced Mr. Matthews
to life plus three years in prison on July 1, 2019.6
Mr. Matthews filed this pro se motion for postconviction relief on November
3, 2021. Mr. Matthews raises four grounds for relief based on ineffective assistance
of trial counsel: (1) his counsel failed to motion the State to disclose pole camera
footage and failed to examine the footage for exculpatory evidence; (2) against his
wishes, his counsel allowed the severance of the PFBPP charge from the Murder
1
See Docket Item (“D.I.”) 19, Superior Court Criminal Docket for Case No. 1806004163.
2
See Superior Court Criminal Docket for Case No. 1712016447.
3
See D.I. 72.
4
See id.
5
See D.I. 75.
6
See D.I. 87 (Sentence Order).
2
First Degree and PFDCF charges; (3) his counsel failed to call Detective Joshuah
Smith as a witness; and (4) his counsel failed to file a motion to suppress the search
and seizure of his cell phone and failed to raise the issue at trial for presentation on
appeal. Additionally, Mr. Matthews raises two grounds for relief based on
ineffective assistance of appellate counsel: (1) his counsel failed to raise
prosecutorial misconduct; and (2) his counsel failed to raise an objection to the
introduction of a reenactment video depicting the shooting. For the reasons stated
below, Mr. Matthews’ motion for postconviction relief is DENIED.
FACTUAL BACKGROUND
The Delaware Supreme Court summarized the underlying facts of this case
in its decision on direct appeal:
At 10:42 p.m. on December 27, 2017, a resident of
Briarcliff Drive in New Castle reported gunshots to police.
Briarcliff Drive runs parallel to Parma Avenue, where
[Antoine Terry] was eventually found. Around the same
time, a Parma Avenue resident called police to report
being awakened by three or four gunshots and saw from
his window a large person in a grey or black hoodie
pointing or extending their arm. At 12:25 a.m. on
December 28, police responded to a report of someone
lying on the ground on Parma Avenue. Police found
Antoine Terry unresponsive with multiple gunshot
wounds in the area of 245 Parma Avenue. He died from
his injuries.
. . . Mr. Terry was friends with Shaheed Matthews, who
stayed at 227 Parma Avenue with his girlfriend, Devon
Johnson. On December 27, 2017, the evening of the
3
shooting, Mr. Terry, Mr. Matthews, and Ms. Johnson
exchanged text messages. Mr. Terry asked Mr. Matthews
if he wanted him to “come to his crib.” Mr. Matthews and
Ms. Johnson were at home. Mr. Terry, Mr. Matthews, and
Ms. Johnson spent the evening together at Ms. Johnson’s
house watching basketball. Ms. Johnson testified that Mr.
Terry and Mr. Matthews left her house around 10:30 p.m.,
but she was upstairs at the time and did not see them leave.
Around the time of the first report of gunshots, Mr.
Matthews called Ms. Johnson and asked her to pick him
up at a church around the corner from her house.
. . . Video cameras from the neighborhood showed two
people leave 227 Parma Avenue at about 10:38 p.m., walk
towards 245 Parma Avenue, stop, and fight. A video
showed one man run away while the second man chased
him, fired several shots, and then ran away. A video also
showed that one of the two people walking out of 227
Parma Avenue appeared to be wearing a white hood and
was the same person being chased by the second man
firing shots. When police found Mr. Terry, he was
wearing a black puffy jacket, white hood, white pants, and
pants around his knees.
. . . The police interviewed Mr. Matthews on December
28, 2017. He first denied having a cell phone, then
admitted he had one, but he gave police the wrong number.
Mr. Matthews eventually surrendered his cell phone to
police. The police recovered internet search history and a
text message thread from Mr. Matthews’ cell phone
revealing that he was looking to purchase a firearm just
days prior to the fatal shooting on December 27, 2017.
. . . The State’s ballistics report was inconclusive as to the
specific type of firearm used to kill Mr. Terry. The police
did not recover the murder weapon. The jacket police
seized from Mr. Matthews when they arrested him tested
4
positive for gunshot residue on the right cuff.7
PROCEDURAL HISTORY
Mr. Matthews appealed his conviction to the Delaware Supreme Court.8 On
appeal, Mr. Matthews challenged the admission of internet searches and text
messages extracted from his cell phone that suggested he was shopping for a firearm
in the days leading up to the murder.9 He reasoned the evidence was irrelevant
because the State failed to establish a nexus between the possible purchase and the
actual gun used in the murder.10 The Supreme Court rejected this argument, finding
the evidence relevant “to show Matthews’ motive and plan to kill Terry.”11 The
Court affirmed the judgment on November 9, 202012 and issued its mandate on
December 2, 2020.13 Mr. Matthews timely filed this, his first motion for
postconviction relief pursuant to Superior Court Criminal Rule 61, on November 3,
2021. The Court offered Mr. Matthews postconviction counsel for this proceeding.
Mr. Matthews specifically requested to proceed pro se in response.14
Under Rule 61(g)(2) and Horne v. State,15 the Court directed both trial and
appellate counsel to submit affidavits to be considered as part of the record. As
7
Matthews v. State, 2020 WL 6557577, at *1-2 (Del. Nov. 9, 2020).
8
See id. at *2.
9
See id.
10
See id.
11
See id. at *3.
12
See id.
13
See D.I. 100.
14
See D.I. 104.
15
887 A.2d 973, 975 (Del. 2005).
5
contemplated by Rule 61(f)(1)16 and (g)(3),17 the Court directed the State to respond,
and, consistent with Rule 61(f)(3) and (g)(3), the Court gave Mr. Matthews leave to
reply to the lawyers’ and the State’s submissions. Former trial counsel filed an
affidavit on May 23, 2022,18 and former appellate counsel filed his affidavit on
August 4, 2022.19 The State filed a response on August 26, 2022. Mr. Matthews
replied via handwritten memorandum on October 20, 2022.
STANDARD OF REVIEW
Before addressing the merits of any postconviction claim, the Court must first
determine whether the claims pass through the procedural filters of Rule 61.20 This
Court will not address the substantive aspects of Mr. Matthews’ claims if the claims
are procedurally barred.21 Rule 61 imposes four procedural requirements on Mr.
Matthews’ motion: (1) the motion must be filed within one year of a final order of
conviction; (2) any basis for relief must have been previously asserted in any prior
postconviction proceedings; (3) any basis for relief must have been asserted at trial
or on direct appeal as required by court rules; and (4) any basis for relief must not
have been formerly adjudicated in any proceeding. Under Rule 61(i)(5), a defendant
may avoid the first three procedural imperatives if the claim is jurisdictional or is a
16
Super. Ct. Crim. R. 61(f)(1).
17
Super. Ct. Crim. R. 61(g)(3).
18
See D.I. 110 (Hereinafter “Trial Counsel Aff.”, May 23, 2022).
19
See D.I. 111 (Hereinafter “Appellate Counsel Aff.”, Aug. 4, 2022).
20
See Younger v. State, 580 A.2d 552, 554 (Del. 1990) (“This Court applies the rules governing procedural
requirements before giving consideration to the merits of the underlying claim for postconviction relief.”).
21
See id.6
“colorable claim that there was a miscarriage of justice because of a constitutional
violation.”22 Further, challenges based on ineffective assistance of counsel may only
be raised during a defendant’s first Rule 61 proceeding.23 Upon review, the Court is
satisfied Mr. Matthews’ motion is timely and procedurally proper.
Ineffective assistance of counsel claims are governed by the two-prong test
set forth in Strickland v. Washington.24 The Strickland test requires the defendant to
prove “counsel’s representation fell below an objective standard of reasonableness”
and “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”25 Evaluating
counsel’s conduct begins with a “strong presumption” the representation was
reasonable.26 This presumption is meant to avoid the “distorting effects of
hindsight.”27
ANALYSIS
As noted supra, Mr. Matthews presents six (6) arguments in support of his
motion for postconviction relief. The Court will take each in turn.
A. The Ineffective Assistance Claims Against Trial Counsel
22
Super. Ct. Crim. R. 61(i)(5).
23
See Wing v. State, 690 A.2d 921, 923 (Del. 1996).
24
See Albury v. State, 551 A.2d 53 (Del. 1988).
25
Strickland v. Washington, 466 U.S. 668, 688 (1984). Per Strickland, the Court is to begin its analysis under the
strong presumption that the conduct of defense counsel constituted sound trial strategy. See id. at 689.
26
Albury, 551 A.2d at 59.
27
Id. at 60. The Strickland Court explained that an error by trial counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of conviction if the error had no effect on the judgment. See Strickland, 466
U.S. at 691.
7
a. Trial Counsel Did Not Fail to Disclose or Investigate
the Pole-Camera Video
Mr. Matthews first claims his trial counsel was ineffective for failing to share
a pole-camera video with him before trial and not investigating the video further.28
At trial, the State submitted Mr. Terry’s shooting occurred outside 241 Parma
Avenue, between the intersection of Ms. Johnson’s residence at 227 Parma Avenue
and Bizarre Drive. To corroborate this claim, the State introduced footage from: (1)
a home surveillance camera at 19 Briarcliff Drive, which captured the area in front
of Ms. Johnson’s residence; (2) a home surveillance camera at 241 Parma Avenue,
which captured the shooting from behind; and (3) a New Castle County Police pole
camera, which captured the intersection of Parma Avenue and Bizarre Drive.29
All told, the 19 Briarcliff footage showed two people30 exit Ms. Johnson’s
residence and walk southeast on Parma Avenue towards Bizarre Drive.31
Approximately seven seconds later, the 241 Parma video captured someone chasing
Mr. Terry on Parma Avenue, shooting him, and fleeing in a northeasterly direction.32
A few minutes after the shooting, Mr. Matthews called Ms. Johnson and asked her
28
See D.I. 101. Mr. Matthews’ filing is a single docket entry, but consists of three documents: a cover letter, a motion
on the form provided by the Court, and a handwritten memorandum of law in support of the motion. Mr. Matthews
explains all his grounds for postconviction relief in the supporting memorandum. Thus, when citing to Mr. Matthews’
arguments, the Court will refer to the memorandum using the abbreviation “Matthews Mem.”
29
See Trial Tr. 27-29, Apr. 10, 2019.
30
The footage allegedly depicted Mr. Matthews and Mr. Terry.
31
See Trial Tr. 18-23, Apr. 10, 2019.
32
See Trial Tr. 19-23, Apr. 10, 2019.
8
to pick him up at a church a few blocks northeast of the shooting scene.33
Subsequently, the 19 Briarcliff camera captured one person (apparently Ms.
Johnson) leave Ms. Johnson’s residence.34 Ms. Johnson’s vehicle then traveled
toward the church.
Ms. Johnson testified she picked up Mr. Matthews at the church and took him
to the home of his sister, Channelle Brooks.35 After visiting with Ms. Brooks, Ms.
Johnson stated she and Mr. Matthews returned to the Parma Avenue residence
together.36 According to Ms. Johnson, Ms. Brooks’ car was parked in front of the
Parma Avenue residence when they arrived at Parma Avenue.37
Ms. Brooks, however, told police a different story. According to her version
of events, she parked her car in front of her residence and Ms. Johnson dropped off
Mr. Matthews to borrow it.
Ultimately, the pole-camera footage captured Ms. Johnson’s vehicle turn into
the Parma Avenue residence at 11:31 p.m.38 Twenty-six minutes later, the camera
depicted Ms. Brooks’s vehicle turn into Parma Avenue at 11:57 p.m.39 The State
interpreted the video as showing Ms. Johnson and Mr. Matthews return to the
33
See Trial Tr. 121-22, Apr. 10, 2019.
34
See Trial Tr. 24-25, Apr. 10, 2019.
35
See Trial Tr. 137, Apr. 10, 2019.
36
See Trial Tr. 139-40, Apr. 10, 2019.
37
See id.38
See Trial Tr. 30, Apr. 10, 2019.
39
See id.9
residence at different times in different cars, thereby corroborating Ms. Brooks’s
statement to police.40 At trial, the State argued this discrepancy in testimony was
one of several instances in which Ms. Johnson attempted to mislead investigators.41
Mr. Matthews, unsurprisingly, has a different view of the facts. He claims the
pole-camera video is a “zoomed in version” of the footage and the unaltered video
would have revealed: (1) he returned with Ms. Johnson in her vehicle, consistent
with her testimony, and (2) his clothing did not match the clothing worn by the
shooter.42 If trial counsel had shared the unedited video with him prior to trial, Mr.
Matthews submits he could have excluded a separate reenactment video of the
shooting,43 had the charges against him dismissed for failure to prove identity, and
“raised serious questions of malicious prosecution.”44
Upon careful review, the Court is satisfied trial counsel did not perform
deficiently in this regard. For one, trial counsel obtained the video in discovery,
reviewed it with Mr. Matthews, and investigated Mr. Matthews’ version of events.45
Indeed, trial counsel received “special permission” from the Department of
Corrections to bring a laptop into prison so he could review the video with Mr.
40
See Trial Tr. 31-32, Apr. 15, 2019.
41
See Trial Tr. 25-32, Apr. 15, 2019.
42
Matthews Mem. at 3-4.
43
The Court will address the merits of Mr. Matthews’ claims related to the reenactment video later in this opinion.
44
Matthews Mem. at 3.
45
See Trial Counsel Aff. at 1-2.
10
Matthews.46 He even went so far as to dispatch an Office of Defense Services
investigator to explore the information Mr. Matthews provided about what occurred
the night of the shooting.47
Further, Mr. Matthews produced no evidence to support the allegation the
video was “zoomed in.” To be sure, the pole-camera video provided limited
coverage and the State concedes the footage was isolated for the purpose of creating
trial exhibits. Mr. Matthews, however, has failed to prove the video was otherwise
edited.
The Court will not fault trial counsel for failing to obtain or utilize evidence
that does not exist.48 Mr. Matthews’ arguments about what additional footage might
have shown are too speculative to demonstrate deficient performance or actual
prejudice under Strickland. Accordingly, this claim must be denied.
b. Trial Counsel Was Not Deficient in Consenting to Case
Severance and Failing to Impeach Detective Reid
Mr. Matthews next argues trial counsel was ineffective for consenting to sever
the person-prohibited charge from the murder case.49 Here again, the Court finds
Mr. Matthews’ claim unavailing.
46
Trial Counsel Aff. at 1-2.
47
See Trial Counsel Aff. at 2.
48
See Cf. Fletcher v. State, 2006 WL 1237088, at *2 (Del. Super. May 9, 2006) (finding defense counsel acted
reasonably by not hiring firearms expert to test a gun that did not exist).
49
See Matthews Mem. at 8-12.
11
During a search of Ms. Johnson’s residence in December of 2017, police
located nine-millimeter ammunition in Mr. Matthews’ bedroom.50 The officers
subsequently arrested Mr. Matthews for only the PABPP charge.51 Six months later,
a grand jury returned an indictment against Mr. Matthews that joined the PABPP
charge with new charges for Murder in the First Degree, PFDCF, and PFBPP.52
With agreement from the State and Mr. Matthews’ trial counsel, the Court ordered
the person-prohibited charges to be tried separately from the murder charge.53
According to Mr. Matthews, “[u]n-linking the two cases prejudiced [him]
because it destroyed any hope of using the false [PABPP] arrest report and
documents provided to counsel … for impeachment purposes in the murder trial.”54
Specifically, Mr. Matthews takes exception to the PABPP report’s indication that he
lived with Ms. Johnson on Parma Avenue, instead of his residence in Pennsylvania.55
Mr. Matthews argues “it was absolutely imperative that the jury heard of the false
police report” because the State tied the majority of its evidence to Detective Reid,
the author of the PABPP arrest report.56
This issue previously arose during a December 2018 scheduling conference.57
50
See D.I. 1 (Initial Crime Report for Compl. No. 32-17-122020).
51
See id.52
See Shaheed Matthews Indictment ¶ 1.
53
See D.I. 19. The Court “unlinked” the PABPP charge and severed the PFBPP charge.
54
Matthews Mem. at 9.
55
See Matthews Mem. at 8-9.
56
Matthews Mem. at 11-12.
57
See Scheduling Conference Tr. 12-18, Dec. 18, 2018.
12
At the conference, Mr. Matthews complained trial counsel did not intend to use
documentation obtained from his Pennsylvania probation officer during the murder
trial.58 Mr. Matthews argued trial counsel should have used the documentation to:
(1) impeach Detective Reid and (2) prove Mr. Matthews lived in Pennsylvania at the
time of the murder, instead of Parma Avenue. Trial counsel responded: “[I]t is
absolutely correct that I told him that … it wouldn’t be in [his] best interest to bring
in a probation officer to testify that [he was] living [in Pennsylvania] when upon
cross examination the reason that you’re involved with that probation officer is a
gun charge.”59
The Court is satisfied trial counsel made a reasonable strategic decision to
minimize Mr. Matthews’ connections to firearms by severing the person-prohibited
charges. As the Delaware Supreme Court recently announced in Justiniano v.
State,60 “[t]he purpose of severance in person-prohibited cases is to prevent a jury
from inferring a criminal disposition based on a defendant’s criminal history.”61
Further, confronting Detective Reid with his report would have yielded
minimal (if any) impeachment value for Mr. Matthews. After the murder, Ms.
Johnson told police Mr. Matthews had lived with her at the Parma Avenue residence
58
See Scheduling Conference Tr. 14-16.
59
Scheduling Conference Tr. 18.
60
2018 WL 2072816 (Del. May 2, 2018).
61
Id. at *2.
13
“on and off” for two years,62 and Mr. Matthews admitted he was at the Parma
Avenue residence on the night of the murder.63 Thus, whether Mr. Matthews legally
resided in Pennsylvania at the time of the PABPP arrest is of no significance to this
case.
In sum, the Court finds the PABPP report error would not have made a
difference at trial. Trial counsel reasonably pursued a strategy to avoid mention of
Mr. Matthews’ history with firearms, and Mr. Matthews has failed to produce
sufficient evidence to undermine confidence in the basis of this decision. Therefore,
the claim is denied.
c. Trial Counsel Was Not Deficient in Failing to Call
Detective Smith to Testify About a Statement in His
Police Report
Next, Mr. Matthews argues trial counsel was ineffective for failing to call and
question Detective Joshuah Smith about an allegedly false statement in his police
report.64
In his supplemental police report, Detective Smith wrote: “[Ms. Johnson]
62
Johnson Int. Tr. (Dec. 29, 2017) at 6-7.
63
See generally Matthews Int. Tr. (Dec. 28, 2017). Mr. Matthews argues this piece of evidence, taken with Detective
Reid’s statement in his report that a video depicted two individuals engaged in an altercation, bolsters the credibility
challenge against Detective Reid. This is nonsensical. First, trial counsel sufficiently cross-examined Detective Reid
on whether the video showed two people in an altercation. Second, any doubts of Detective Reid’s credibility based
on the report are (at best) speculative. Third and finally, it is clear trial counsel balanced the benefit of using this
“impeachment material” against the risk associated with the jury hearing Mr. Matthews was a person prohibited from
possessing firearms and made a strategic trial decision to not use it. This is exactly the type of decision the Court will
not overturn in hindsight.
64
See Matthews Mem. at 12-15.
14
stated she picked up [Mr. Matthews] in the area of the ‘trashcans’ described as the
area known as Parma and Bizarre.” Mr. Matthews acknowledged this statement put
him in the direct vicinity of the shooting,65 but argued other available evidence
contradicted it.66 According to Mr. Matthews, the inclusion of this “false” statement
in the report constituted malicious prosecution, and trial counsel should have used
the statement to impeach the credibility of the investigating officers.67
This argument defies logic. For one, the report explicitly couches the
summary as statements Ms. Johnson made, rather than independently proven facts.68
And, as Mr. Matthews admits, Ms. Johnson did tell detectives she picked up Mr.
Matthews near the trashcans:
[Detective Reid]: Okay? What I’m really interested in is
you – you said you picked up [Mr. Matthews] at the
corner, where – where is – where – where at?
[Ms. Johnson]: Almost to the corner right where the
trashcans are.69
Because the statement in the report was not false, trial counsel could not have used
it as a basis to impeach the credibility of the investigators. Thus, the Court is
satisfied trial counsel’s decision to not call Detective Smith as a defense witness was
65
See Matthews Mem. at 13.
66
See Matthews Mem. at 13-15.
67
Matthews Mem. at 15.
68
See Detective Smith’s Feb. 2, 2018 Supplemental Report for Compl. No. 32-17-121392, at 006.
69
Johnson Int. Tr. at 34.
15
a reasonable one, and Mr. Matthews did not suffer prejudice as a result of it. This
claim is denied.
d. Trial Counsel Was Not Deficient in Handling the Cell
Phone Evidence
At trial, the State admitted internet searches and text messages that suggested
Mr. Matthews shopped for a firearm in the days before the murder.70 Mr. Matthews’
phone contained searches for “Ruger 45” and “Ruger P97” (a brand and calibers of
firearms) in the days leading up to the shooting.71 Additionally, a week before the
murder, Mr. Matthews texted an unknown individual, “how much.”72 The person
replied, “450” with a picture of an item with the logo of Taurus, a firearm
manufacturer, on it.73 Mr. Matthews responded, “That’s too much.”74
The State also introduced a text conversation between Mr. Matthews and Ms.
Johnson the day after the murder.75 In the conversation, Ms. Johnson wrote to Mr.
Matthews, “I love you so much and I can’t lose you” and “[c]hanges have to be made
now.”76 Ms. Johnson testified she was expressing fear she may lose Mr. Matthews
to violence;77 however, after the murder, Ms. Johnson told police the comment was
70
See Trial Tr. 78-83, Apr. 12, 2019.
71
Trial Tr. 80, Apr. 12, 2019. These internet searches had been deleted before Mr. Matthews turned over his phone
to police, but officers were able to recover them.
72
Trial Tr. 82-83, Apr. 12, 2019.
73
Trial Tr. 82-83, Apr. 12, 2019.
74
Trial Tr. 83, Apr. 12, 2019.
75
See Trial Tr. 38-41, Apr. 10, 2019.
76
Trial Tr. 154, Apr. 10, 2019; see also Trial Tr. 39, Apr. 15, 2019.
77
See Trial Tr. 154-155, Apr. 10, 2019.
16
about troubles in their relationship.78 The State used these messages to question
when and how Ms. Johnson learned of Mr. Terry’s murder.79
In his motion, Mr. Matthews argues: (1) trial counsel rendered ineffective
assistance by failing to challenge the cell phone search warrant in a motion to
suppress, and (2) even if the cell phone evidence was admissible, trial counsel was
ineffective in preparing to address the evidence at trial. The Court will address each
claim individually.
1. The Motion to Suppress
Mr. Matthews first contends the police downloaded the contents of his phone
under a general warrant, in violation of the Fourth Amendment of the United States
Constitution and Article I, § 6 of the Delaware Constitution.80 He argues the search
warrant must have lacked probable cause, particularity, and a nexus between the
crime and his phone because the police could not have developed probable cause
given the facts known at the time of the search.81
Trial counsel disagrees. In his Rule 61 affidavit, trial counsel notes he
objected to certain portions of the cell phone evidence.82 He did not, however, see
a basis for excluding the cell phone evidence as a whole.83 For the following reasons,
78
See Trial Tr. 157-158, Apr. 10, 2019.
79
See Trial Tr. 38-39, Apr. 15, 2019.
80
See Matthews Mem. at 17-18.
81
See Matthews Mem. at 17-20.
82
See Trial Counsel Aff. at 3.
83
See id.
17
the Court must side with trial counsel.
I. The Particularity Requirement
The United States Constitution “specifies only two matters that must be
‘particularly describe[ed] in warrant: ‘the place to be searched’ and the persons or
things to be seized.’”84 However, given the unprecedented volume of private
information stored on electronic devices, warrants directed to digital information
present unique challenges in satisfying the Fourth Amendment particularity
requirement.85
The United States Supreme Court articulated this complexity in Riley v.
California.86 In considering a warrantless search of a cell phone, the Riley Court
observed that, much like a computer search, “[a cell] phone not only contains in digital
form many sensitive records previously found in the home; it also contains a broad
array of private information never found in a home in any form….”87 Thus, as Riley
observed, top-to-bottom digital searches permit the government access to “far more
than the most exhaustive search of a house.”88
Although the Delaware Supreme Court has hesitated to prescribe rigid rules
governing cell phone search warrants, the Court did outline the minimum
84
United States v. Grubbs, 547 U.S. 90, 97, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006) (alteration in original).
85
See Wheeler v. State, 135 A.3d 282, 299 (Del. 2016).
86
--- U.S. ----, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014).
87
Id. at 2491.
88
Id. (emphasis in original).
18
requirements to procure such a warrant in State v. Wheeler:89
Federal Courts of Appeal have concluded that warrants
lacking temporal constraints, where relevant dates are
available to the police, are insufficiently particular. . . .
Striking the correct balance when protecting against
generality and overbreadth requires vigilance on the part
of the judicial officers who are on the front lines of
preserving constitutional rights while assisting
government officials in the legitimate pursuit of
prosecuting criminal activity. Where . . . the investigators
had available to them a more precise description of the
alleged criminal activity that is the subject of the warrant,
such information should be included in the instrument and
the search and seizure should be appropriately narrowed
to the relevant time period so as to mitigate the potential
for unconstitutional exploratory rummaging.90
As mentioned above and discussed below, Mr. Matthews argues the search warrant
for his cell phone was an unconstitutional general warrant. His concern bears
scrutiny.
In its warrant application, the police requested to perform a “forensic
examination” on “any and all” digital contents of Mr. Matthews’ cell phone.91 This
examination broadly “include[d] but [was] not limited to call logs, SMS (text)
messages, MMS (media) messages, internet browsing history, images and/or videos,
any and all information that may identify suspects and/or co-conspirators, [and] any
89
135 A.3d 282.
90
See id. at 306.
91
Detective Rau’s December 29, 2017 Application and Affidavit in Support of Search Warrant for Contents of
Shaheed Matthews’ Cell Phone, Compl. No. 32-17-121392 (hereinafter “Rau Warrant”) at 02.
19
and all information related to the crime….”92
The Court agrees with Mr. Matthews that the warrant application itself is void
of the temporal constraints prescribed by Wheeler. As an illustration, the affidavit
states Mr. Terry allegedly shot Mr. Matthews’ girlfriend two years ago.93 The
application, however, makes no effort to limit the search back to the date of the
alleged shooting.
Wheeler recognizes that a warrant – no matter its target – must both “describe
the things to be searched with sufficient particularity and be no broader than the
probable cause on which it is based.”94 The State has failed to argue, much less
argue convincingly, the cell phone warrant satisfied this particularity requirement.
Because of this, the Court finds the cell phone warrant to be a general warrant – that
scrouge of executive overreach “abhorred by the colonists” that permitted “a general,
exploratory rummaging in a person’s belongings”95 for vaguely-defined categories
of contraband.96
II. Voluntary Consent
The validity of the search warrant notwithstanding, Mr. Matthews provided
92
Id.
93
See id. at 2. The Court presumes the authoring officer included this allegation in the affidavit to provide the issuing
magistrate with Mr. Matthews’ motive for the shooting.
94
Wheeler, 135 A.2d at 299.
95
Id. at 296 (internal citations omitted).
96
See United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d
137, 149 (3d Cir. 2002) (Alito, J.).
20
police with an independent basis to search his phone when he consented to the
search.
In Scott v. State,97 the Delaware Supreme Court held searches conducted
pursuant to “valid consent” are excepted from the Fourth Amendment warrant
requirement.98 The Scott Court found consent to be “valid” when it is voluntarily
offered by a person with authority to do so.99
In this case, police visited Mr. Matthews after learning he was with Mr. Terry
on the night of the murder. The officers asked Mr. Matthews for his contact
information, and Mr. Matthews stated he did not own a cell phone.100 Later in the
conversation, however, Mr. Matthews told police he and Mr. Terry exchanged text
messages the night of the murder.101 When reminded that he claimed not to own a
cell phone, Mr. Matthews admitted to owning a phone but explained he did not want
to “give the number out.”102 In response, an officer told Mr. Matthews he was being
“funny” about his cell phone and cell phone number.103 Mr. Matthews then offered
to provide his phone to police.104
The officers accepted this offer. It bears mention that Mr. Matthews made the
97
672 A.2d 550, 552 (Del. 1996). The Scott Court, in essence, articulated the holding of the United States Supreme
Court in Schneckloth v. Bustamonte, 412 U.S. 218, 221-22 (1973).
98
See id.99
Id.100
See Matthews Int. Tr. at 1.
101
See Matthews Int. Tr. at 7-8.
102
Matthews Int. Tr. at 8.
103
Matthews Int. Tr. at 12.
104
See Matthews Int. Tr. at 12. Specifically, Mr. Matthews told the officer “[Y]ou can have it.”
21
offer before officers notified him they had already obtained a warrant for the
phone.105 Subsequently, police told Mr. Matthews they planned to connect the phone
to a computer and “dump the contents of it.”106 Mr. Matthews agreed to this proposal
and offered to retrieve his phone from his brother’s house for the police.107 He
suggested the officers follow him to the house and volunteered his phone’s passcode
to them.108
As the owner of the phone, Mr. Matthews possessed authority to give consent.
He clearly did so voluntarily. Mr. Matthews spoke with police at Ms. Johnson’s
residence on Parma Avenue – not at police headquarters or a similar custodial
setting. At no point during the conversation was Mr. Matthews taken into custody;
in fact, officers encouraged Mr. Matthews to leave so he could retrieve the cell
phone. He initiated consent without prompting and unaware of the search warrant
officers had already obtained. Even after learning officers planned to “dump” his
phone, Mr. Matthews did not withdraw or limit his consent.
Recently, this Court confronted a similar factual scenario in State v.
Blackwood.109 In sum, officers in Blackwood obtained an overly broad warrant to
search the defendant’s cell phone.110 Nevertheless, police also obtained the
105
See generally Matthews Int. Tr. at 1-12.
106
Matthews Int. Tr. at 12.
107
See Matthews Int. Tr. at 13.
108
Rau Warrant at 5-6 ¶ 10.
109
2020 WL 975465, at *6-7 (Del. Super. Feb. 27, 2020).
110
See id. at *3-5.
22
defendant’s consent to search the cell phone.111 The Blackwood defendant: (1)
confirmed the seized phone belonged to him; (2) told police they would find alibi
information on the phone; (3) volunteered the phone’s passcode; and (4) physically
unlocked the phone for police.112 In its final analysis, Blackwood concluded the
defendant was not coerced and appeared “willing to cooperate with the police of a
desire to prove his innocence.”113
Here, as in Blackwood, Mr. Matthews was cooperative with police.114 He
volunteered his phone to the officers and helped them access it, knowing they
intended to download its entire contents. In light of this consent, a motion to
suppress based on defects in the search warrant would have been futile. Trial counsel
did not perform deficiently by failing to file one.
III. Actual Prejudice
Further, even if the consent was defective, the cell phone evidence had no
bearing on the outcome of the case. The State submitted the evidence to prove Mr.
Matthews’ intent, but the surveillance video showing the suspect chasing down and
shooting Mr. Terry from behind more than adequately proved that element of the
crime. The video evidence, combined with Ms. Johnson’s statements, leaves the
111
See id. at *6-7.
112
See id. at *6.
113
Id.
114
Whether this cooperation stemmed from Mr. Matthews’ belief that police would not find the deleted searches for
firearms is not for the Court to say.
23
Court with no room to reasonably conclude anyone other than Mr. Matthews could
have been the shooter.
To review, three people were together at 227 Parma Avenue on the night of
the murder: Mr. Matthews, Mr. Terry, and Ms. Johnson. Each of the three left the
residence at around 10:30 p.m. According to Ms. Johnson, Mr. Matthews and Mr.
Terry left first.
The 19 Briarcliff footage confirms Ms. Johnson’s version of events. As noted
supra, it shows two people leave 227 Parma Avenue together, walk southeast along
Parma Avenue, stop at the edge of the frame, and get into a fight before continuing
in the same direction. The 241 Parma video picks up approximately seven seconds
later, showing a person in a hooded jacket and black sneakers chase Mr. Terry
southeast on Parma Avenue, shoot him, and flee northeast through a cut between the
blocks of townhomes. A few minutes after the shooting, Mr. Matthews called Ms.
Johnson and requested she pick him up a few blocks northeast of the shooting scene.
Immediately after the call, the cameras capture a third person leave 227 Parma
Avenue and Ms. Johnson’s vehicle travel towards Mr. Matthews’ location. The
footage does not reveal anyone else traveling from the area of 227 Parma Avenue to
Mr. Matthews’ location during this time.
Indeed, Ms. Johnson did pick Mr. Matthews up from a location in the same
direction the shooter fled. Shortly thereafter, police seized a hooded jacket and
24
sneakers from Mr. Matthews that matched the suspect’s clothing in the 241 Parma
video. The right cuff of the jacket tested positive for gunshot residue.
The State’s case was strong. That is so, even without the cell phone evidence.
The Court thereby finds Mr. Matthews suffered no actual prejudice from the
admission of the phone activity. This claim is denied.
2. The Handling of the Cell Phone Evidence in Trial
Mr. Matthews next submits that even if the cell phone evidence was
admissible, trial counsel was unprepared to rebut or impeach it. The Court examines
each claim related to the phone evidence in turn.
I. The Trial Strategy
In sum, this claim arises from the sidebar discussion of trial counsel’s
objection to the firearm-related cell phone evidence.115 At trial, counsel for Mr.
Matthews informed the Court he had received substantial productions from the State
“at the tail end of the discovery.”116 Although the State identified the cell phone
evidence as a possible trial exhibit, a miscommunication with prosecutors led trial
counsel to assume the State would also flag any evidence it intended to admit under
Delaware Rule of Evidence 404(b).117 Operating under this assumption, trial counsel
believed that because the State did not flag the firearm messages as 404(b) evidence,
115
See Trial Tr. 143-52, Apr. 11, 2019; Trial Tr. 19-50, Apr. 12, 2019.
116
Trial Tr. 49, Apr. 12, 2019.
117
See Trial Tr. 33-34, Apr. 12, 2019.
25
it would redact those messages from the exhibits or otherwise not seek to admit
them.118 As trial counsel stated, “[M]aybe that was my mistake in assuming.”119
Nevertheless, trial counsel still timely objected to the firearm-related cell
phone evidence under 404(b).120 Counsel stated that if he knew the State would
introduce the evidence, he “possibly” would have altered the defense theory and
argued Mr. Matthews was someone “into firearms” to explain the gunshot residue
on his jacket.121 This Court overruled the objection.
Based on this exchange, Mr. Matthews argues trial counsel dismissed the cell
phone evidence out of hand and was unprepared to rebut the meaning of the text
conversation between he and Ms. Johnson, the implication that his phone history
showed no remorse or sadness over Mr. Terry’s murder, and the importance of the
searches and text messages about a possible firearm purchase.122
Then, in what is almost stream of consciousness, Mr. Matthews offers a string
of things trial counsel could have done had he devised a proper strategy: (1) shown
Mr. Matthews and Ms. Johnson were discussing their relationship problems; (2)
found social media messages expressing pain over Mr. Terry’s death; (3) argued the
firearms Mr. Matthews sought were different in caliber from the murder weapon; (4)
118
See Trial Tr. 24, Apr. 12, 2019.
119
Trial Tr. 24, Apr. 12, 2019.
120
See Trial Tr. 35-36, Apr. 12, 2019.
121
Trial Tr. 149, Apr. 11, 2019.
122
See Matthews Mem. at 21.
26
discovered Mr. Matthews and Mr. Terry were searching for firearms together
because Mr. Terry received death threats; (5) uncovered Mr. Matthews searched for
firearms just “to see what [they] looked like”; and (6) discovered Mr. Matthews
deleted the entire search history from his phone because it included pornography.123
The Court is skeptical trial counsel’s strategy would have changed based on
the miscommunication with the State. It would have been against the interest of Mr.
Matthews for trial counsel to present him – a person prohibited from possessing
firearms – as someone who was “into firearms.” Further, trial counsel did, in fact,
address many of the issues at trial similarly to how Mr. Matthews suggests he should
have.
For example, trial counsel did argue the text conversation between Mr.
Matthews and Ms. Johnson concerned problems in their romantic relationship.124
Had trial counsel introduced more of the conversation, however, he would have
contradicted the trial testimony of Ms. Johnson, who told the jury the conversation
was about her concern she may lose Mr. Matthews to violence after learning of Mr.
Terry’s death.125
Furthermore, trial counsel relayed to the jury that Mr. Matthews deleted more
than just the firearm searches from his cell phone history and never possessed the
123
Matthews Mem. at 26-27.
124
See Trial Tr. 62-63, Apr. 15, 2019.
125
See Trial Tr. 154-155, Apr. 10, 2019.
27
firearms he searched for.126 As trial counsel stated during closing arguments, “[T]he
text messages about Mr. Matthews inquiring about a firearm, [they] actually show[]
you he didn’t buy it.”127 The additional avenues Mr. Matthews suggests trial counsel
should have explored would have provided marginal additional value, as the State
presented the texts and searches to show preparation and intent – not to specifically
identify the murder weapon.
II. The Social Media Posts
Next, Mr. Matthews takes issue with trial counsel’s failure to use his social
media posts to rebut the State’s implication that he did not show emotion upon
learning of Mr. Terry’s death.128 This argument fails for two reasons.
First, the posts would have been inadmissible at trial. Delaware Rule of
Evidence 801(d)(2) excepts hearsay statements made by party opponents.129 Mr.
Matthews faults trial counsel for not introducing the posts, but the posts clearly
would not fit into the party-opponent exception unless offered by the State.130
Moreover, even if it were proper to consider the social media, the argument
would still fail because the posts did not rebut the State’s evidence. As the State
argued in closing, the cell phone evidence revealed Mr. Matthews did not attempt to
126
See Trial Tr. 56-57, Apr. 15, 2019.
127
Trial Tr. 57, Apr. 15, 2019.
128
See Matthews Mem. at 22.
129
See D.R.E. 801(d)(2) (emphasis added).
130
See generally id.
28
determine if Mr. Terry was safe, despite learning of a shooting outside his
girlfriend’s home. Implicit in this argument was not that Mr. Matthews lacked
remorse, but rather, that he lacked ignorance. Mr. Matthews did not need to
investigate Mr. Terry’s well-being because he knew Mr. Terry was already dead.
Mr. Matthews has not persuasively disputed this point. Therefore, his
argument is rejected.
III. The Decision Not to Testify
Finally, Mr. Matthews argues he would have chosen to testify in his own
defense had trial counsel performed differently. Once again, the record evidence
proves fatal to his claim.
The decision on whether to testify ultimately belongs to the defendant, not his
trial counsel.131 If the defendant waives the right to testify after appropriate colloquy
with the Court, then the defendant’s own decision precludes a finding of cause or
prejudice under Strickland and its progeny.132 The record clearly establishes the
Court conducted a waiver colloquy with Mr. Matthews and determined his decision
not to testify was knowing and voluntary:
THE COURT: Do you understand that you have a
constitutional right to testify or not testify in this trial?
MR. MATTHEWS: Yes.
131
See Erkskine v. State, 2013 WL 1919121, at *2 (Del. May 7, 2013).
132
See id.; see also State v. Taye, 2014 WL 785033, at *5 (Del. Super. Feb 26, 2014).
29
THE COURT: Do you understand that your attorney and
maybe family members can advise you one way or the
other, but, in the final analysis, this is a right, or rather a
decision, that only you can make. Do you understand that?
MR. MATTHEWS: Yes.
THE COURT: Do you understand that if you exercise your
constitutional right not to testify, I will instruct the jury
that you have a constitutional right not to testify, and that
that decision cannot be held against you?
MR. MATTHEWS: Yes.
THE COURT: Do you believe that you have had enough
time to confer about this with your attorney?
MR. MATTHEWS: Yes.
THE COURT: Do you understand that this decision is a
final decision, meaning you will not be able to come back
at some later time and say that you really did wish to
testify, but didn’t realize you had to make the decision
right here and now? This will be a final decision. Do you
understand that?
MR. MATTHEWS: Yes.
THE COURT: Do you believe you are knowingly,
voluntarily, and intelligently . . . waiving your right to
testify in this trial?
MR. MATTHEWS: Yes.
30
THE COURT: [Trial counsel], I meant to ask you this
before I started discussing it. Do you believe you’ve had
ample time to discuss the pros and cons of testifying with
your client?
[TRIAL COUNSEL]: Yes, Your Honor. Just to set a
record, we had spoken about it previously in passing and
putting strategy together whether or not he would or
wouldn’t. I spoke with him uniquely on that situation
yesterday for a long period of time after we adjourned here
yesterday until the Department of Corrections had to take
him back. And then I also spoke with him today during
the entire lunch period. Well, I spoke with his family
briefly at the beginning of the lunch period, and then used
the rest of that time to speak with him on the matter. And
I feel as though, yes, we went over all the pros and cons.
We went through a lot of information. And I believe that
we’ve discussed it appropriately.
THE COURT: Thank you. So I’ll just ask the question
again, since there’s a little bit of further factual
background with [trial counsel]’s comments. Do you
believe you are knowingly, voluntarily, and intelligently
waiving your constitutional right to testify?
MR. MATTHEWS: Yes.
THE COURT: I find that Mr. Matthews has knowingly,
voluntarily, and intelligently waived his constitutional
right to testify.133
Of note, this colloquy took place after the State admitted the cell phone evidence
133
Trial Tr. 168-71, Apr. 12, 2019.
31
and Mr. Matthews offered his purported explanations for the phone activity. Faced
with this information, Mr. Matthews still chose to waive his right to testify. The
Court will not attribute the strategic consequences of his own decision to trial
counsel under these circumstances. This claim is denied.
B. The Ineffective Assistance Claims Against Appellate Counsel
a. The Prosecutorial Misconduct Claim on Appeal
Mr. Matthews next directs his ire towards appellate counsel. In his first
argument, he claims the prosecutor misled this Court during a sidebar and faults
appellate counsel for not raising a claim of prosecutorial misconduct based on the
alleged deceit.134
During the cross examination of Detective Reid at trial, Mr. Matthews’ trial
counsel asked, “And you’re aware that nothing found at 227 Parma Avenue links
Shaheed Matthews to the death of Antoine Terry, correct?”135 Detective Reid
hesitated to answer, prompting the prosecutor to request a sidebar conference.136 At
sidebar, the prosecutor and the Court had the following exchange:
THE COURT: The Detective obviously hesitated in
answering the question.
[THE PROSECUTOR]: Correct, Your Honor. That’s why
I asked for the sidebar. The Detective was instructed by
[the prosecutors] to not make reference to the ammunition
134
See Matthews Mem. at 27-30.
135
Trial Tr. 118-19, Apr. 12, 2019
136
See Trial Tr. 119, Apr. 12, 2019.
32
found at 227 Parma Avenue. The ammunition is 9-
millimeter. The ballistics expert testified yesterday that
the deformed projectiles could have been fired from a 9-
millimeter. When he was answering [trial counsel]’s
questions, I’m assuming Detective Reid’s hesitation was
that, in answering the question honestly, he may very well
say “not true” and say something we told him not to say.137
Indeed, the State’s ballistics expert testified the previous day:
[THE PROSECUTOR]: You indicate that Items 1 and 2
[the projectiles recovered from the scene of Mr. Terry’s
murder] would be the .38 caliber?
[THE EXPERT]: Well, they’re .38 caliber class. A .38
caliber class includes several cartridge designations.
When I say .38 caliber, I’m basically referring to the
diameter of the bullet. Okay. Now, that can include all of
your 9-millimeters, .380’s, your .38’s, and .357 magnums.
They’re all very close in diameter. So, therefore, I just
give it a caliber class.138
Noticing his question to Detective Reid risked opening the door, trial counsel
rephrased and asked a more pointed question: “Detective, when the officers searched
227 Parma Avenue, there was no firearm found related to [Mr. Matthews]?”139
Detective Reid agreed.140
Essentially, Mr. Matthews’ argument boils down to an erroneous claim that,
as a matter of science, the bullets taken from Mr. Terry’s body could not have been
137
Trial Tr. 119, Apr. 12, 2019.
138
Trial Tr. 136, Apr. 11, 2019.
139
Trial Tr. 121, Apr. 12, 2019.
140
See Trial Tr. 121, Apr. 12, 2019.
33
the nine-millimeter bullets seized from his bedroom on Parma Avenue.141 He
concludes the sudden sidebar on this subject prejudiced him in front of the jury
because it indicated police did find evidence inside 227 Parma Avenue that tied him
to the murder.142
The Court will not address Mr. Matthews’ borderline-incoherent
interpretation of the State’s evidence collection procedures, other than to say it is
plainly incorrect. Mr. Matthews does not allege – nor could he – any other basis to
conclude the prosecutor was deceitful at sidebar.143
The first step in analyzing any claim of prosecutorial misconduct is
determining whether any misconduct occurred.144 If not, the analysis ends.145
Against this background, it is abundantly clear from the record no prosecutorial
misconduct occurred. In fact, the prosecutor requested the sidebar conference so as
to avoid prosecutorial error. Had appellate counsel raised this claim on appeal, the
Delaware Supreme Court’s analysis would have ended at the first step. Appellate
counsel did not perform deficiently by failing to do so, and Mr. Matthews suffered
no prejudice as a result. This claim is denied.
141
See Matthews Mem. at 28-29.
142
See Matthews Mem. at 30.
143
The Court notes the sidebar conference was actually helpful to Mr. Matthews. Had Detective Reid answered the
question honestly, he would have revealed there was, in fact, evidence found at Parma Avenue that linked Mr.
Matthews to the murder.
144
See Baker v. State, 906 A.2d 139, 150 (Del. 2006).
145
See id.34
b. The Failure to Challenge the Reenactment Video on
Appeal
In his final ground for postconviction relief, Mr. Matthews claims appellate
counsel rendered ineffective assistance by failing to challenge the admission of a
reenactment video depicting the shooting on appeal. Not so.
By way of background, the police seized a pair of black Nike Air Force 1
sneakers and a blue H&M hooded winter jacket from Mr. Matthews at the time of
his arrest.146 When officers examined the jacket, they noticed its dark-blue color
would turn light-gray under infrared light – the same type of light used in the
surveillance footage discussed supra.147 The sneakers still appeared black under the
light.148 In the surveillance footage, the shooter appeared to wear a light-gray
hooded jacket and black shoes.149 With this in mind, the officers created a
reenactment video to determine if the dark-blue jacket matched the clothing worn
by the shooter in the surveillance footage.150
Mr. Matthews brings three problems with the reenactment video to the Court’s
attention: (1) the video was a “scientific comparison” submitted without proper
foundation because the officers who created the video were not experts in crime-
scene reenactment; (2) the prosecutor misrepresented to the Court that “he had
146
See Trial Tr. 66-67, Apr. 9, 2019.
147
See Trial Tr. 154, Apr. 11, 2019.
148
Id.149
See Trial Tr. 154-55, Apr. 11, 2019.
150
Trial Tr. 155, Apr. 11, 2019.
35
federal case law supporting what the investigating detectives did in the video
reenactment” when, according to Mr. Matthews, “there are no federal cases, to [his]
knowledge, that support a[n] officer removing what was considered evidence from
the police station, transport[ing] it back to the crime scene and us[ing] the physical
evidence to conduct a reenactment”; and (3) the use of his clothing in the video
contaminated evidence, as it was the officers in the video who must have placed the
gunshot residue on his jacket.151 Mr. Matthews is confident his appeal would have
been successful had appellate counsel raised the above issues.152
With Mr. Matthews’ argument thusly framed, the Court evaluates each claim
independently.
1. The “Scientific Comparison”
Although a video reenactment is experimental evidence, it is not necessarily
“expert” evidence.153 Expert testimony refers to testimony based on scientific,
technical, or other specialized knowledge.154 Lay testimony, on the other hand, is
testimony based on perception.155 The Delaware Supreme Court recently
distinguished the two in Jackson v. State.156
151
Matthews Mem. at 30-33.
152
See Matthews Mem. at 30-33.
153
See, e.g., United States v. Baldwin, 418 F.3d 575, 579 (6th Cir. 2005) (“The video reenactment, made for the
purpose of demonstrating that [the defendant] was physically capable of unzipping his pants while allegedly bound in
his car, is a form of experimental evidence.”).
154
See D.R.E. 702(a).
155
See D.R.E. 701(a).
156
See 2018 WL 936845, at *3.
36
In Jackson, a police officer identified a hole in a window as a bullet hole at
trial, even though he could not locate the bullet because the projectile took an
“unpredictable” path.157 Although the officer based his opinion (at least in part) on
his experience and work in law enforcement, the Jackson Court explained the
testimony was not expert evidence because it “was based on [the officer]’s rational
perception of something he personally observed.”158
Similarly, in this case, the officers did not perform an experiment that required
specialized knowledge. Rather, the police made a reenactment video to see if Mr.
Matthews’ dark-blue jacket would appear light gray on the surveillance cameras.
The basis for the reenactment video was the officers’ own perception.
Moreover, in recognition of the “gray area” between expert and experimental
evidence, federal courts have developed a separate standard for judging the
admissibility of reenactment evidence. Simply put, if the reenactment does not
involve scientific or otherwise specialized knowledge, the courts inquire into
whether officers conducted the reenactment under conditions “substantially similar”
to the actual event.159
Out of an abundance of caution, the police in this case took numerous steps to
157
See id.158
Id.159
See, e.g., United States v. Jackson, 479 F.3d 485, 498 (7th Cir. 2007); Baldwin, 418 F.3d at 579-80; United States
v. Birch, 39 F.3d 1089, 1092 (10th Cir. 1994); Norton v. Frohnmayer, 1991 WL 279021, at *2 (9th Cir. Dec. 26,
1991).
37
ensure they created the reenactment video under substantially similar conditions to
the footage from the night of Mr. Terry’s murder. First, the officers used the same
home surveillance camera from 241 Parma Avenue that originally captured the
shooting.160 Second, the officers mimicked the natural lighting by performing the
reenactment under the same moon phase.161 Third, the police ensured the weather
conditions were similarly clear and dry.162 Fourth and finally, the officers ensured
the same cars were parked on the street.163
Because the conditions in the reenactment video were substantially similar to
the surveillance footage, the State was not required to provide expert qualifications
for the officers who created it. The Court properly admitted the video. Mr.
Matthews is incorrect.
2. The Federal Caselaw
Next, and contrary to Mr. Matthews’ claims, there is federal precedent for
police using actual evidence from a case in reenactment videos.
For example, in Norton v. Frohnmayer,164 officers used the defendant’s
vehicle, whose splashguard was bent out of position, to reenact the car driving
through a ditch at a murder scene.165 The police realigned the splashguard, drove
160
See Trial Tr. 156-59, Apr. 11, 2019.
161
See Trial Tr. 156-59, Apr. 11, 2019.
162
See Trial Tr. 156-59, Apr. 11, 2019.
163
See Trial Tr. 156-59, Apr. 11, 2019.
164
See 1991 WL 279021, at *2.
165
See id.38
the vehicle through the ditch, and observed the ditch bent the splashguard out of
position in the same way.166 The United States Court of Appeals for the Ninth
Circuit affirmed admission of the video reenactment, finding the conditions of the
reenactment substantially similar to the day of the murder.167
Likewise, in United States v. Jones, the United States Court of Appeals for
the Third Circuit upheld admission of a reenactment video where an officer walked
through a robbery scene wearing the defendant’s shoes.168 Before Jones, in United
States v. Rodriguez, the Third Circuit affirmed the trial court’s decision to admit a
bank robbery reenactment that depicted an officer wearing the defendant’s red
windbreaker to show it could have been the jacket worn in black and white
surveillance footage.169
The Court will not belabor the point further. Mr. Matthews’ claim is rejected.
3. The Gunshot Residue
In this final claim, Mr. Matthews’ argument sits on a fault line running
through his entire motion. Besides treating assumptions as facts, Mr. Matthews
repeatedly emphasizes small parts and ignores the whole. Here, he (inaccurately)
166
See id.167
See id.168
See 737 Fed. App’x 68, 73-74 (3d Cir. 2018).
169
54 Fed. App’x 739, 748-49 (3d Cir. 2002).
39
insists there was a negative test for gunshot residue on his jacket before the positive
test.170
The first “test” Mr. Matthews refers to was merely a scan by police officers
using infrared light.171 As the officer who scanned the jacket testified, gunshot
residue is microscopic and not visible to the naked eye unless clustered in an area.172
The second test, conducted in a laboratory using a scanning electron microscope,
revealed “a population of gunshot residue present on the jacket.”173 This test used
samples collected at the time of Mr. Matthews’ arrest, weeks before police
conducted the reenactment video.174
A claim challenging the admission of the reenactment video would not have
been successful, and the Court is satisfied appellate counsel did not act deficiently
by failing to raise it. Because the claim would not have been successful, there is no
reasonable probability the outcome of Mr. Matthews’ appeal would have been
different. As with the other claims, Mr. Matthews’ argument is rejected.
CONCLUSION
For the foregoing reasons, Mr. Matthews’ Motion for Postconviction Relief
is DENIED.
170
See Matthews Mem. at 32-33.
171
See Trial Tr. 85-86, Apr. 9, 2019.
172
See Trial Tr. 85-86, Apr. 9, 2019.
173
Trial Tr. 74-75, Apr. 11, 2019.
174
See Trial Tr. 66-71, 82-88, Apr. 9, 2019.
40
IT IS SO ORDERED.
/s/ Francis J. Jones, Jr.
Francis J. Jones, Jr., Judge
Original to Prothonotary (Criminal)
41