State v. Appiah ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
v. ) I.D. No. 1808022193
)
KENNETH APPIAH, )
)
Defendant, )
)
Date Submitted: May 30, 2023
Date Decided: August 28, 2023
Date Corrected: August 30, 20231
MEMORANDUM OPINION
Defendant’s Motion for Postconviction Relief: DENIED
Defendant’s Motion for Rule 61 Discovery: DENIED as
MOOT
Postconviction Counsel’s Motion to Withdraw: GRANTED
Julie M. Donoghue, Deputy Attorney General, Department of Justice, 820
N. French St., Wilmington, Delaware 19801. Attorney for the State of
Delaware.
Christopher S. Koyste, Law Office of Christopher S. Kosyte LLC, 709
Brandywine Blvd., Wilmington, Delaware 19809. Attorney for Defendant.
Kenneth Appiah, pro se.
JURDEN, P.J.
1
The cover page has been corrected to reverse the order of the parties.
I. INTRODUCTION
Defendant Kenneth Appiah was convicted by a jury of Burglary First Degree
and related charges after he broke into his former roommate’s home, firing two
gunshots before fleeing. The Supreme Court affirmed Appiah’s convictions on
direct appeal, and he now seeks postconviction relief. For the reasons set forth
below, Appiah’s Motion for Postconviction Relief is DENIED, Appiah’s “Motion
Seeking DNA and Gunshot Residue Testing of Evidence, Rule 61 Discovery” is
DENIED as MOOT, and Postconviction Counsel’s Motion to Withdraw is
GRANTED.
II. BACKGROUND2
A. The Attempted Robbery
Around 7:00 p.m. on December 13, 2017, Aruna Kanu, his girlfriend, and
their son were in their home when a man wearing a black outfit and black mask
unlocked the apartment door with a key, entered, brandished a gun, and gestured like
he was demanding money.3 Kanu went into the primary bedroom, where his
girlfriend and son were, and locked the door shut.4 The intruder fired two gunshots
through the bedroom door, hitting the son’s crib and a wall.5 Kanu’s girlfriend dialed
2
The Court has drawn the facts from the appendices attached to the briefing and the Delaware
Supreme Court’s findings on direct appeal. Where appropriate, the Court will cite to specific items
in the record. Items in the appendix are denominated using “A[#].” See Appiah v. State, 244 A.3d
681, 2020 WL 7625353 (Del. Dec. 22, 2020) (TABLE).
3
A145-46, A148-49.
4
A149-50.
5
A113.
2
911 and handed the phone to Kanu, who told the operator that he had been shot
several times (he had not).6 The intruder fled.
When police arrived, Kanu said that he believed the intruder was his former
roommate, but at the time could not remember the roommate’s name.7 Appiah, the
former roommate to whom Kanu was referring, rented a room from Kanu for
approximately two weeks before breaking the seven-month verbal rental agreement
with Kanu and vacating the apartment.8 After Appiah left, Kanu refused to return
his security deposit.9 So, as collateral for his security deposit, Appiah retained the
keys to the apartment.10 Appiah unsuccessfully sought police help to get his deposit
back, but they explained that the issue was a civil matter.11 Appiah then began
texting Kanu about the deposit.12 Kanu never returned it, and began renting the room
to Ricardo Campbell.13
At the scene, police collected two spent .32 caliber shell casings from outside
the bedroom door, and a projectile from the baby’s crib.14 Body-worn camera
6
A110-11, A127, A161.
7
A161, A165. Kanu eventually advised officers the intruder’s name was Appiah. See id.; see also
Jury Trial Tr. 101:7-9, D.I. 65.
8
A139-140.
9
A140-143.
10
Id.11
A126, A141.
12
A141-44. In a final October 16, 2017 text, Appiah told Kanu, “you need to stop playing with
me.” A144.
13
A118, A144-45.
14
A113, A115. The other projectile was lodged in the drywall and therefore could not be
recovered. A113.
3
footage from one of the responding police officers showed an officer going into
Campbell’s room and commenting that it “smel[ed] like T16.”15 That same officer
pointed out a drug scale and drug packaging.16
About forty-five minutes after the incident, officers responded to Appiah’s
residence, which was about nine miles away.17 When they arrived, Officer
Przeworski, one of the responding officers, touched the hood of Appiah’s car and
noted that it was cold.18 Twenty minutes later, Appiah, who was wearing all black
clothing, exited his apartment building and approached the officers.19 Officer
Przeworski patted down Appiah for weapons, but none were recovered.20 Appiah
claimed he had been helping his children with homework since 4:00 p.m.21 The
officers did not arrest Appiah.22 Two days later, police interviewed Appiah again.23
Appiah admitted that he owned a .32 caliber handgun (but claimed he had never
fired it) and provided a DNA sample.24 Police seized the gun for testing.25 In July
2018, the gun, the recovered shell casings, and the recovered projectile were tested.26
15
A133.
16
Id.17
A130.
18
Id.19
A130-A131.
20
A132.
21
A131.
22
A132.
23
A165.
24
A166, A168, A170. Appiah stated he had sole possession of the handgun. A402.
25
A166.
26
A166-A167, A181.
4
Robert Freese, an independent forensic firearms examiner who was contracted by
the Delaware State Police,27 conducted the tests and concluded the shell casings were
fired from the same gun, and were consistent with having come from Appiah’s gun.28
However, Freese could neither identify nor eliminate the projectile as having been
fired from Appiah’s gun.29 On August 31, 2018, police arrested Appiah.30
B. Trial, Post-Trial Motion, and Sentencing
A grand jury indicted Appiah for Home Invasion, Burglary First Degree, five
counts of Possession of a Firearm during the Commission of a Felony, Attempted
Robbery First Degree, three counts of Reckless Endangering First Degree, and
Criminal Mischief.31 Appiah elected to go to trial, which spanned four days – March
12, 2019, March 13, 2019, March 18, 2019, and March 19, 2019.32
On the second day of trial, Trial Counsel lodged an objection and later moved
for a mistrial, arguing she did not receive prior inconsistent statements made by
Kanu. During the State’s direct examination of Kanu, the Court called counsel to
sidebar to address its “concern about the accuracy and integrity of the record”
because it was unclear what kind of head covering Kanu was trying to describe.33
27
A171.
28
A42, A180.
29
Id.30
D.I. 1.
31
Indict., D.I. 4.
32
D.I. 27.
33
A147.
5
During the conference, Trial Counsel stated Kanu’s testimony was inconsistent with
the discovery she received, and asked if Kanu had any pretrial meetings in which he
made similar statements.34 The State said Kanu had a meeting with a Department of
Justice social worker and the prosecutor a week or two prior to trial.35 Trial Counsel
lodged an objection that she had not been “provided with the social worker’s notes,
or the prosecutor’s notes, with these inconsistent statements,” and asked for those
materials.36 The Court instructed the State to get the notes, noting the inconsistencies
would be “great fodder” on cross-examination.37 The State resumed its direct
examination of Kanu, and Trial Counsel again objected, arguing that Kanu was
testifying inconsistently from the discovery provided to Trial Counsel.38 The Court
again stated the inconsistencies could be explored on cross-examination.39
Upon the conclusion of the State’s direct examination of Kanu, the Court
ordered the State to complete any necessary redactions to the social worker’s notes
and then provide those notes to Trial Counsel.40 After reviewing the social worker’s
notes, Trial Counsel moved for a mistrial, arguing the State violated Brady on two
34
A147. Kanu testified that the intruder pointed a gun at him and wore a “cap, disguised as a
mask” that left the eyes, nose, and mouth exposed. A146.
35
A147.
36
Id.37
Id. See also A152-53.
38
A150. Kanu stated for the first time at trial that the baby was in the crib when the shots were
fired; however, that appeared to be a miscommunication because on cross-examination he testified
that the baby was on the bed. A150, A163.
39
A151.
40
A152-53.
6
grounds.41 First, she argued that the notes about the head covering were inconsistent
with the discovery materials she received and the State’s opening statement referring
to it as a “mask.”42 Second, she argued that Kanu’s testimony that the gun was
pointed at his head was inconsistent with the discovery provided to her, and although
the State knew Kanu might testify to that on the stand, it did not disclose the
inconsistent information to Trial Counsel.43 Trial Counsel argued that “a big part of
[her] consultations” with Appiah regarding defense strategy centered around
whether the intruder’s face was visible and therefore sought a mistrial,44 and that had
she known Kanu would testify a gun was pointed at him, she would have introduced
contradicting body-worn camera footage where he indicates with his hands the gun
was pointing elsewhere.45
The Court denied the Motion for a Mistrial on both grounds. As to Trial
Counsel’s first argument, the Court highlighted that if the State’s opening statement
mirrored the information Trial Counsel had received, the State did not act with “ill
intent.”46 The Court found there was no prejudice because the only discrepancy was
41
See A154-55.
42
A154-55.
43
A156.
44
A155.
45
A156.
46
A154. The Court stated:
The fact that you just said that [Kanu’s] statements under oath today in front of the
Jury are inconsistent with what the State said the evidence would show in its
opening shows me that there is no ill intent by Mr. Bloom about not producing these
7
whether the intruder’s mouth was exposed, and that could be explored on cross-
examination.47 As to Trial Counsel’s second argument, the Court held Appiah was
not prejudiced because Trial Counsel still had the opportunity to show the body-
worn camera footage on cross-examination.48 The Court allowed Trial Counsel the
lunch break to prepare for her cross-examination in light of the notes and body-worn
camera footage.49
After the lunch break, Trial Counsel requested “all of the notes of the
Department of Justice’s investigator, social worker, or Attorney General notes
regarding any interviews with any witnesses,” arguing that she only received the
social worker’s notes regarding one of Kanu’s statements.50 The Court asked the
State whether there were “any other discoverable notes that should be produced.”51
The State responded that it had produced all Brady material.52 The State told the
Court that none of the notes contained any inconsistencies with Kanu’s testimony
on the stand and therefore they were not impeachment evidence.53 The State
pretrial statements made a week or two ago because he was operating under the
assumption of what he told the Jury.
Id.47
A155.
48
A156.
49
Id.50
A157 (emphasis added).
51
A158.
52
Id.53
Id.8
contended that because the notes did not contradict the “key portions of the charges,”
they were not material.54 The Court ruled that there was no Brady violation.55
In all, the State introduced the following evidence to prove Appiah was the
culprit: Kanu’s testimony identifying Appiah as the intruder,56 Appiah’s admission
that he owned a .32 caliber handgun,57 Freese’s testimony as a firearms forensics
expert that the shell casings collected from the scene matched Appiah’s handgun,58
text messages between Appiah and Kanu,59 and Appiah’s key access to the
apartment.60 The defense argued Appiah was not the perpetrator.61 On March 18,
2019, Trial Counsel moved for Judgment of Acquittal, which the Court denied.62
After deliberating for approximately five hours, at 3:45 p.m. the jury submitted a
jury note stating they could not reach a unanimous decision as to whether Appiah
was the true defendant.63 The Court, the State, and Trial Counsel (who first
54
Id.55
Id.56
A161.
57
A166, A402.
58
A180.
59
A141-44.
60
A140-41, A145.
61
Trial Counsel Aff., D.I. 116.
62
A250-254.
63
Jury Note Tr. 2:8-14, D.I. 77. The jury advised the Court in the jury note that:
Your Honor, we, the jury, cannot come to a unanimous decision to determine if
Kenneth Appiah should be the true defendant in this case. We are at an 11 to 1
split. Therefore, we cannot go through the other counts without coming to a
decision on this matter. Is there any guidance you can provide us on this, thank
you.
Id.9
discussed it with her client) agreed an Allen charge should not be given.64 The Court
asked the jury, which was only voir dired through that day, whether additional
deliberations would be fruitful; in response, the foreperson said the jury was willing
to come back the next day.65 The Court adjourned for the day and the jury returned
the next morning to continue its deliberations.66 After the additional day of
deliberations, the jury found Appiah guilty of Burglary First Degree, five counts of
PFDCF, Aggravated Menacing (the lesser-included offense of Attempted Robbery
First Degree), three counts of Reckless Endangering First Degree, and Criminal
Mischief.67 Appiah, through Trial Counsel, filed a Motion for a New Trial, arguing
that his right to a fair trial was unfairly prejudiced because the State’s misstatements
during its closing and rebuttal arguments amounted to prosecutorial misconduct.68
The Court denied the motion, finding the challenged statements did not amount to
prosecutorial misconduct.69 On January 10, 2020, the Court sentenced Appiah to a
total of seventeen years of unsuspended Level V time.70
64
Id. at 3:2-16.
65
Id. at 9:20–10:12.
66
Id. at 13:12-17; see also A272.
67
D.I. 27.
68
Def.’s Mot. New Trial, D.I. 44. Appiah argued that the State’s conclusory assertions that the
recovered shell casings “matched” Appiah’s firearm in its closing and rebuttal arguments
constituted prosecutorial misconduct. In its closing argument, the State said, “officers recovered
the defendant’s firearm and shell casings, and they matched,” and in its rebuttal argument said,
“the firearm, the shell casings, the test-fired shell casings and shell casing recovered match.” Jury
Trial Tr. 12:23–13:2, 48:11-13, D.I. 41.
69
Mem. Op. Den. Mot. New Trial, D.I. 52.
70
Appiah was sentenced, effective September 1, 2018, as follows: for Burglary First Degree, 8
years at Level V, suspended after 2 years for decreasing levels of supervision; for each count of
10
C. Direct Appeal
Appiah, through Appellate Counsel, raised two arguments on direct appeal.
First, Appiah argued that by denying Trial Counsel’s request to cross-examine
Campbell (Kanu’s roommate at the time of the incident) about the drug
paraphernalia found in his room, the Court abused its discretion and denied Appiah
his constitutional right to confrontation and a meaningful opportunity to present a
complete defense.71 Appiah alleged three claims of error relating to the denial: (1)
the evidence could have been used to show bias under D.R.E. 616; (2) the evidence
could have been used to rebut the State’s motive argument under D.R.E. 404(b); and
(3) precluding the evidence violated the Confrontation Clause and Appiah’s Due
Process right to a fair opportunity to defend against the State’s accusation.72
The Supreme Court rejected Appiah’s claims, finding that the probative value
of the evidence was outweighed by risk of confusion of the issues, undue delay, and
unfair prejudice, and therefore the Superior Court did not abuse its discretion.73 The
Supreme Court held it was “highly doubtful that the drug paraphernalia evidence
PFDCF, 3 years at Level V; for Aggravated Menacing, 5 years at Level V, suspended for 18
months at Level III; for each count of Reckless Endangerment First Degree, 5 years at Level V,
suspended for 18 months at Level III; and for Criminal Mischief, a fine of $575. Corrected
Sentence Order, D.I. 74.
71
Appiah, 2020 WL 7625353, at *1.
72
Id. at *2.
73
Id. at *2-3. “The Superior Court did not abuse its discretion when it weighed the speculative
and marginal relevance of the evidence against the prejudice to the State of allowing cross-
examination on – at best – a tangential issue.” Id. at *3.
11
would have affected the jury’s decision” because the evidence was “speculative and
minor in importance to other evidence of guilt such as the .32 caliber weapon, shell
casings, Appiah’s access to keys to the apartment, and Kanu’s identification of
Appiah as the intruder.”74 The Supreme Court further held that, assuming, arguendo
the Superior Court had erred, Appiah’s constitutional rights were not violated
because the “error” would not have affected the outcome.75
Second, Appiah argued that the Court compromised his right to self-
representation by denying his requests for new counsel or self-representation.76 The
Supreme Court held the Court did not abuse its discretion by denying Appiah’s
request for new counsel because it was not supported by good cause justifying a
continuance of the trial.77 The Supreme Court further held that Appiah’s self-
representation claim was “without merit” because he did not timely, clearly, and
unequivocally request to represent himself before trial.78
74
Id. at *4.
75
Id.
76
Id. at *4-5.
77
Id. at *4.
78
Id. at *5.
The Superior Court was well within its discretion to deny the request when the same
request was thoroughly considered a week before trial. Granting Appiah’s request
on the second day of trial would have delayed the trial and caused prejudice to the
State, trial witnesses, and the court in a trial that was fully underway.
Id.
12
D. Postconviction
Because the procedural history of this postconviction matter is extensive and
convoluted given Appiah’s multiple filings and the timing of these filings, the Court
finds a chronology would be helpful before engaging in its analysis of Appiah’s
postconviction claims.
• February 5, 2021: Appiah filed a Motion for Postconviction Relief (“First
Postconviction Filing”) pro se.79 Appiah asserted five grounds for relief: (1)
ineffective assistance of Trial Counsel for not requesting an identification
instruction; (2) ineffective assistance of Trial Counsel for not requesting
discovery of all police statements, body-worn camera footage, surveillance
footage, and fingerprint and DNA analyses; (3) ineffective assistance of
Appellate Counsel for not appealing the denial of Trial Counsel’s request for
the notes from Kanu’s pretrial interviews; (4) the State’s violation of Brady/
Jencks for not producing the notes from Kanu’s pretrial interviews; and (5)
the State’s violation of Appiah’s Due Process rights for using materially
compromised ballistic evidence because of Carl Rone’s involvement.80
79
Def.’s Mot. Postconviction Relief, D.I. 80 [hereinafter First Postconviction Filing].
80
Id. Carl Rone was the former chief firearm ballistics expert for the Delaware State Police. He
was suspended, pled guilty to theft, and left the police force. Randall Chase, Ex-Police Ballistics
Expert Pleads Guilty to Theft, Associated Press (Oct. 25, 2018 2:32 p.m.),
https://apnews.com/b1528a48342a4dcb9962fe4f19c30428.
13
• February 10, 2021: Appiah filed a Motion for Appointment of Counsel pro
se.81
• March 11, 2021: Appiah filed an Amended Motion for Postconviction Relief
(“Second Postconviction Filing”) pro se.82 In the Second Postconviction
Filing, Appiah asserts five claims: (1) ineffective assistance of Trial Counsel
for not requesting an identification instruction and an Allen instruction; (2) the
police’s violation of Appiah’s Due Process rights by using an unduly
suggestive identification procedure that relied on an unreliable or
compromised firearm expert report that involved Carl Rone; (3) the State’s
violation of Brady/Jencks for not producing the notes from Kanu’s pretrial
interviews; (4) ineffective assistance of Appellate Counsel for not appealing
the denial of the motion requesting the notes from pretrial interviews Kanu;
and (5) ineffective assistance of Trial Counsel for not requesting incident
reports and body-worn camera footage of all officers who reported to
Appiah’s residence before Officer Przeworski arrived to check out Appiah’s
alibi.83 Aside from two small differences, the Second Postconviction Filing
mirrors the First Postconviction Filing. In the Second Postconviction Filing,
Appiah supplements the ground for relief concerning the identification
81
Def.’s Mot. Appt. Counsel, D.I. 79.
82
Def.’s Am. Mot. Postconviction Relief, D.I. 81 [hereinafter Second Postconviction Filing].
83
Id.
14
instruction, additionally claiming that Trial Counsel was ineffective for not
requesting an Allen instruction.84 In the ground for relief concerning
discovery materials, he omits surveillance footage from his list of discovery
materials that Trial Counsel allegedly failed to request.85
• April 26, 2021: The Court issued an Order for Appointment of Counsel
pursuant to Rule 61(e)(2).86
• July 20, 2021: Christopher S. Koyste was appointed as Postconviction
Counsel (“Postconviction Counsel”).87
• June 24, 2022: Postconviction Counsel filed a Motion to Withdraw as Counsel
(“Motion to Withdraw”), asserting that following a thorough investigation of
the record, he believes Appiah’s claims are meritless and he cannot ethically
advocate for them, and no other potential meritorious postconviction claims
exist.88
• August 15, 2022: Appiah filed another Amended Motion for Postconviction
Relief (“Third Postconviction Filing”) pro se,89 and a Response to the Motion
84
Id. at 3-4.
85
Id. at 4.
86
Order Appointment Counsel, D.I. 84. See Super. Ct. Crim. R. 61(e)(2).
87
Appt. Postconviction Counsel, D.I. 88.
88
Mot. to Withdraw, D.I. 98. Postconviction Counsel attached four appendices to his Motion to
Withdraw. App. Vol. I, D.I. 99; App. Vol. II, D.I. 100; App. Vol. III, D.I. 101; App. Vol. IV, D.I.
102.
89
Def.’s Am. Mot. Postconviction Relief, D.I. 108 [hereinafter Third Postconviction Filing].
15
to Withdraw (“Fourth Postconviction Filing”).90 In the Third Postconviction
Filing, Appiah raises ten grounds for relief: (1) ineffective assistance of Trial
Counsel for not objecting to or moving to suppress Kanu’s in-court
identification of Appiah; (2) ineffective assistance of Trial Counsel for not
requesting an identification instruction;91 (3) ineffective assistance of Trial
Counsel for not requesting a Lolly/Deberry instruction; (4) ineffective
assistance of Trial Counsel for not hiring an “effective expert” to cross-
examine and/or impeach the State’s expert witness; (5) ineffective assistance
of Postconviction Counsel for not hiring an “effective” ballistics expert to aid
90
Def.’s Resp. Mot. to Withdraw, D.I. 107 [hereinafter Fourth Postconviction Filing]. Although
the Fourth Postconviction Filing is styled as a response to Postconviction Counsel’s Motion to
Withdraw, the Fourth Postconviction Filing simply reiterates nine of the ten grounds for relief
raised in the Third Postconviction Filing, omitting only the cumulative error claim. Appiah asserts
the following claims: (1) ineffective assistance of Trial Counsel for not objecting to Kanu’s in-
court identification of Appiah; (2) ineffective assistance of Trial Counsel for not requesting an
identification instruction; (3) ineffective assistance of Trial Counsel for not requesting a
Lolly/Deberry instruction; (4) ineffective assistance of Trial Counsel for not hiring an “effective
expert” who could cross-examine and/or impeach the State’s forensic firearms expert; (5)
ineffective assistance of Appellate Counsel for not appealing the denial of the Motion for Judgment
of Acquittal on the charge of Burglary First Degree; (6) ineffective assistance of Trial Counsel for
not hiring an independent examiner to test the glove for DNA and gunpowder residue, and the
swabs collected from the shell casings for potential DNA; (7) ineffective assistance of
Postconviction Counsel for not hiring an independent examiner to test the glove for DNA and
gunpowder residue, and the swabs collected from the shell casings for potential DNA; (8)
ineffective assistance of Trial Counsel for not requesting a continuance so she could call the officer
who observed drug paraphernalia in Campbell’s room; (9) ineffective assistance of Postconviction
Counsel for not hiring an “effective expert” who could cross-examine and/or impeach the State’s
forensic firearms expert. Appiah also requested that the Court appoint new postconviction counsel.
91
This ground for relief was contained within the claim that Trial Counsel was ineffective for not
objecting to or moving to suppress Kanu’s in-court identification of Appiah, however the Court
has separated the two claims for clarity. See id. at 3.
16
in Appiah’s defense;92 (6) ineffective assistance of Appellate Counsel for not
appealing the denial of the Motion for Judgment of Acquittal on the Burglary
First Degree charge; (7) ineffective assistance of Trial Counsel for not hiring
an independent examiner to test for DNA and gunpowder residue; (8)
ineffective assistance of Postconviction Counsel for not hiring an independent
examiner to test for DNA and gunpowder residue;93 (9) ineffective assistance
of Trial Counsel for not requesting a continuance to subpoena the police
officer who observed drug paraphernalia in Kanu’s apartment; and (10)
cumulative error.94
• August 18, 2022: The Court issued an Order Directing Expansion of the
Record.95 Because Appiah raises additional ineffective assistance of counsel
claims in the Third Postconviction Filing, the Court ordered Trial Counsel and
Appellate Counsel to file affidavits and any materials that respond to the
specific claims against each of them.96
92
This ground for relief was contained within the claim that Trial Counsel was ineffective for not
hiring an “effective expert,” however the Court has separated the two for clarity. See id. at 17.
93
This ground for relief was contained within the claim that Trial Counsel was ineffective for not
hiring an independent examiner, however the Court has separated the two for clarity. See id. at
21.
94
Id.
95
Order Directing Expansion R., D.I. 109. The Order was corrected on August 25, 2022 to fix a
scrivener’s error. Corrected Order Directing Expansion R., D.I. 110.
96
Order Directing Expansion R., D.I. 109; Corrected Order Directing Expansion R., D.I. 110.
17
• December 8, 2022: Appiah filed a “Motion Seeking DNA and Gunshot
Residue Testing of Evidence, Rule 61 Discovery” (“Motion for Rule 61
Discovery”) pro se.97
• December 20, 2022: Trial Counsel filed her affidavit.98
• January 6, 2023: The Court held a teleconference to address the increasingly
convoluted record in light of Appiah’s Third and Fourth Postconviction
Filings.99 The Court stated it would construe the filings as responses to
Postconviction Counsel’s Motion to Withdraw, interpreting the responses to
mean Postconviction Counsel erred in failing to raise the additional claims.100
The State agreed the claims related back to Appiah’s first filing.101 The Court
requested that Postconviction Counsel address why he believed two of
Appiah’s newly-raised claims lacked merit in a “Response to the Court’s
Questions.”102
• January 11, 2023: Appellate Counsel filed her affidavit.103
97
Def.’s Mot. Postconviction Disc., D.I. 113. Appiah also filed a letter requesting that the Court
relieve Postconviction Counsel and appoint new counsel. Def.’s Letter, D.I. 112.
98
Trial Counsel Aff., D.I. 116.
99
Teleconference Tr., D.I. 128.
100
Id. at 11:12-17. The Court stated:
[R]ather than try and go back and tell him again what he needs to do, I’m just going
to interpret his new filing as a response and draw from it what I can to see why he
objects to your finding of no merit on the various claims. I think that’s the most
expeditious way to handle this.
Id.
101
Id. at 13:6-7.
102
Id. at 28:3-14.
103
Appellate Counsel Aff., D.I. 121.
18
• January 27, 2023: Postconviction Counsel filed a Response to the Court’s
Questions.104
• March 7, 2023: The Court set a Postconviction Scheduling Order.105 The
Court ordered Trial Counsel to address two of Appiah’s grounds for relief that
were not previously addressed in a supplemental affidavit.106
• March 29, 2023: Trial Counsel filed a supplemental Affidavit of Response.107
Trial Counsel addressed two grounds for relief to which she had not
previously responded.108
• April 28, 2023: The State filed its Response in Opposition to the Defendant’s
Pro Se Motions for Postconviction Relief.109
• May 30, 2023: Appiah filed his Reply Brief.110 In the Reply Brief, Appiah
reasserts an amalgamation of the above claims.111
104
Postconviction Counsel’s Resp. to Ct.’s Questions, D.I. 122.
105
Postconviction Scheduling Order, D.I. 124.
106
Id. ¶ (a).
107
Trial Counsel’s Suppl. Aff., D.I. 129.
108
Id. Trial Counsel’s supplemental affidavit addressed Appiah’s claims regarding the Allen
instruction and the request for discovery material.
109
State’s Resp., D.I. 134. The State attached an Appendix to its Response. State’s Resp. App.,
D.I. 135.
110
Def.’s Reply Br., D.I. 137. Appiah attached an Appendix to his Reply Brief. Def.’s Reply Br.
App., D.I. 138.
111
Appiah lists the following twelve claims: (1) “interest of justice requires a review of Appiah’s
claims that the State violated Jencks/Brady, and Appellate Counsel was constitutionally ineffective
for failing to appeal Jencks/Brady violation on direct appeal;” (2) “Appiah’s claim about the State’s
out-of-court identification procedure and Mr. Rone’s involvement should be considered in the
interest of justice;” (3) “Trial Counsel was constitutionally ineffective for failing to request a jury
instruction on eyewitness identification and an Allen instruction;” (4) “Trial Counsel was
constitutionally ineffective for failing to object to, or move to suppress Kanu’s in-court
19
III. STANDARD OF REVIEW
A defendant may move under Superior Court Criminal Rule 61 for
postconviction relief.112 Rule 61 “balance[s]” the law’s interest in conviction finality
“against . . . the important role of the courts in preventing injustice.”113 Although
the availability of collateral review reintroduces uncertainty into completed criminal
proceedings, the (“extremely rare”) possibility of undetected innocence or a
comparable miscarriage of justice overrides its disruptive effects.114
In the generic case, however, there must be a “definitive end to the litigable
aspect of the criminal process.”115 Collateral review “ensure[s] that individuals are
not imprisoned” wrongly; it is not designed to correct minor “errors of fact.”116
identification of Appiah as the intruder;” (5) “Trial Counsel was constitutionally ineffective for
failing to request all police incident reports, police statements, body camera footage, surveillance
footage, and fingerprint and DNA reports;” (6) “Trial Counsel was constitutionally ineffective for
failing to request [a] Lolly/Deberry jury instruction;” (7) “Trial Counsel was ineffective for failing
to hire an ‘effective’ expert;” (8) “Trial Counsel was ineffective for failing to hire an independent
examiner to examine for DNA and gun shot residue on [] the black left-handed glove found in
front of Kanu’s apartment, [] the sample swabs collected from the casings found at the crime scene,
and [] Appiah’s gun;” (9) “Appellate Counsel was ineffective for failing to appeal the Motion for
Judgment of Acquittal on the Burglary First Degree Charge;” (10) “Trial Counsel was ineffective
for failing to seek a continuance to [sic] subpoena the officer who found evidence of drug dealing
in Kanu’s apartment to testify on the evidence, as the evidence was relevant to the credibility of
State’s witnesses in the form of bias and it was relevant to rebut the State’s motive theory;” (11)
“Defendant is entitled to discovery in this postconviction;” (12) “Defendant is entitled to relief for
cumulative error.” Def.’s Reply Br., D.I. 137.
112
Super. Ct. Crim. R. 61.
113
Zebroski v. State, 12 A.3d 1115, 1120 (Del. 2010).
114
Schlup v. Delo, 513 U.S. 298, 321 (1995). Accord Purnell v. State, 254 A.3d 1053, 1122–23
(Del. 2021).
115
Flamer v. State, 585 A.2d 736, 745 (Del. 1990).
116
Herrera v. Collins, 506 U.S. 390, 400 (1993).
20
“Calibrated to screen for the wrongfully convicted, Rule 61 should not be used to
launch post hoc strikes on issues inessential to a judgment of guilt.”117
Rule 61 does not “allow defendants unlimited opportunities to relitigate their
convictions.”118 To deter abusive collateral litigation, the standards and
presumptions “adopted” under postconviction rules purposefully have made
“winning [collateral] relief difficult[.]”119 For example, a defendant seeking to
invalidate a conviction must contend with a “presumption of regularity.”120 “The
presumption of regularity attaches to all final judgments . . . and implies those
judgments have been done rightly until contrary evidence appears.”121
Before addressing the merits of any claim for postconviction relief, the Court
must consult the four procedural bars in Rule 61(i).122 Rule 61(i)(1) provides that a
motion for postconviction relief is untimely if it is filed more than one year after a
judgment of conviction is final.123 Rule 61(i)(2) bars the consideration of successive
117
State v. Owens, 2021 WL 6058520, at *10 (Del. Super. Dec. 21, 2021).
118
Ploof v. State, 75 A.3d 811, 820 (Del. 2013).
119
Brown v. Davenport, 142 S. Ct. 1510, 1526 (2022).
120
E.g., Parke v. Raley, 506 U.S. 20, 29 (1992); accord Xenidis v. State, 2020 WL 1274624, at *2
(Del. Mar. 17, 2020).
121
Xenidis, 2020 WL 1274624, at *2.
122
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
123
Super. Ct. Crim. R. 61(i)(1).
21
motions.124 Rule 61(i)(3) bars procedurally defaulted claims.125 And Rule 61(i)(4)
bars consideration of any ground for relief formerly adjudicated in the case.126
IV. DISCUSSION
As the chronology makes clear, Appiah has filed numerous pro se motions
that contain multiple claims and raise repetitive and overlapping issues.127 This,
however, is Appiah’s first time seeking postconviction relief, and the Court will
address each claim in turn.
Appiah is not procedurally barred under Rule 61(i)(1) because he first moved
for postconviction relief within a year after the judgment of conviction became
final.128 He is not procedurally barred under Rule 61(i)(2) because he has not filed
previous motions for postconviction relief. With the exception of one claim,129
Appiah’s ineffective assistance of counsel claims are not procedurally barred under
Rule 61(i)(3) or Rule 61(i)(4) because this proceeding is the first opportunity Appiah
has had to raise claims of ineffective assistance of counsel. As will be discussed
124
Id. at 61(i)(2).
125
Id. at 61(i)(3).
126
Id. at 61(i)(4).
127
First Postconviction Filing, D.I. 80; Second Postconviction Filing, D.I. 81; Third
Postconviction Filing, D.I. 108; Fourth Postconviction Filing, D.I. 107; Def.’s Mot. Postconviction
Disc., D.I. 113, Def.’s Reply Br., D.I. 137.
128
See Super. Ct. Crim. R. 61(i)(1). Appiah’s conviction became final when the Supreme Court
of Delaware affirmed Appiah’s convictions on direct appeal in an Order dated December 22, 2020.
See Appiah, 2020 WL 7625353, at *1. Appiah filed his first motion less than two months later on
February 5, 2021. See First Postconviction Filing, D.I. 80.
129
Appiah’s claim that Trial Counsel was ineffective because she did not request a continuance to
subpoena the police officer who observed drug paraphernalia in Kanu’s apartment fails under Rule
61(i)(4). See supra Section IV.A.1.h.
22
later in this Memorandum Opinion, however, Appiah’s Due Process claims are
procedurally barred; one under Rule 61(i)(3),130 the other under Rule 61(i)(4).131
A. Appiah’s Ineffective Assistance of Counsel Claims
Claims of ineffective assistance of counsel are governed by the Strickland v.
Washington two-prong test.132 To establish a claim of ineffective assistance of
counsel under Strickland, a defendant must show: (1) counsel’s performance fell
below an objective standard of reasonableness; and (2) prejudice, meaning that, but
for counsel’s unprofessional errors, there is a reasonable probability the result of the
proceeding would have been different.133 To establish deficient performance, the
burden is on the movant to show that counsel’s conduct fell below an objective
standard of reasonableness, “i.e., that no reasonable lawyer would have conducted
the defense as his lawyer did.”134 There is a strong presumption that counsel’s
performance was reasonable, and in particular, trial strategies and tactics made after
a thorough investigation are “virtually unchallengeable.”135 Managing defense
strategy includes “making decisions about when and whether to object, which
130
Appiah’s claim that the police’s use of an unduly suggestive identification procedure that relied
on unreliable or materially compromised ballistic evidence violated his Due Process rights fails
under Rule 61(i)(3). See supra Section IV.C.2.
131
Appiah’s claim that the State violated Jencks and Brady fails under Rule 61(i)(4). See supra
Section IV.C.1.
132
466 U.S. 668 (1984).
133
Id. at 688, 694.
134
Green v. State, 238 A.3d 160, 174 (Del. 2020).
135
Id. (internal quotation marks omitted).
23
witnesses to call, and what defenses to develop.”136 To establish prejudice, a movant
“must make specific allegations of how defense counsel’s conduct actually
prejudiced the proceedings, rather than mere allegations of ineffectiveness.”137
Failure to prove either prong will “doom [the] claim, and the Court need not address
the other [prong].”138
1. Appiah’s Claims Against Trial Counsel
a. Trial Counsel did not request an identification instruction.
Appiah argues that Trial Counsel was ineffective because she failed to request
an identification instruction.139 He argues that “no reasonable trial strategy” can
explain Trial Counsel’s failure to request the instruction, “because if Kanu did
identify Appiah as the shooter it [sic] would not have taken the police eight months
to arrest Appiah.”140 Although Trial Counsel requested an alibi instruction, Appiah
argues it was not effective in this case because alibi was not the sole defense theory,
and an identification instruction would have minimized the prejudice caused by the
State’s failure to conduct a photo line-up or live line-up prior to trial.141 Appiah
136
Tucker v. State, 2017 WL 5127673, at *3 (Del. Nov. 3, 2017).
137
Alston v. State, 125 A.3d 676, 2015 WL 5297709, at *3 (Del. Sept. 4, 2015).
138
State v. Lindsey, 2023 WL 2535895, at *6 (Del. Super. Mar. 16, 2023) (citing Strickland, 466
U.S. at 697; Ploof, 75 A.3d at 825).
139
First Postconviction Filing 3-4, D.I. 80; Second Postconviction Filing 3-4, D.I. 81; Third
Postconviction Filing 3-8, D.I. 108; Fourth Postconviction Filing 1-2, D.I. 107; Def.’s Reply Br.
5-7, D.I. 137.
140
Third Postconviction Filing 8, D.I. 108.
141
Fourth Postconviction Filing 2, D.I. 107. Appiah argues that, although Trial Counsel requested
alibi and credibility jury instructions (which were given), the credibility instruction did not provide
the jury with “meaningful guidance,” and the alibi instruction “failed to inform[] or minimized the
24
maintains there is a reasonable probability he would not have been convicted if an
identification instruction had been given because identification was a critical issue
in this case.142 In support of his argument, Appiah’s points to the fact that one juror
was struggling to determine whether Appiah was the “true defendant.”143
Jury instructions fall within trial strategy.144 If requesting a particular
instruction would be inconsistent with the defense theory, counsel’s decision not to
request such an instruction is not objectively unreasonable.145 Here, the defense
theory was that Kanu was “biased against Appiah and was always going to believe”
that the perpetrator was Appiah.146 According to Trial Counsel, the issue was not
whether Kanu misidentified Appiah, it was that someone else committed the crime
but Kanu blamed Appiah.147 Trial Counsel believed an identification instruction
would clash with the defense theory, and instead requested an alibi instruction,
which states:
The defendant has raised the defense of alibi . . . The defendant
contends that, when the crime was allegedly committed, the defendant
was somewhere other than the place where the crime was allegedly
impact of Kanu’s dubious in-court identification.” First Postconviction Filing 3, D.I. 80; Third
Postconviction Filing 7, D.I. 108.
142
First Postconviction Filing 3-4, D.I. 80; Second Postconviction Filing 3, D.I. 81; Third
Postconviction Filing 4-8, D.I. 108; Fourth Postconviction Filing 2, D.I. 107; Def.’s Reply Br. 5-
7, D.I. 137.
143
Third Postconviction Filing 7, D.I. 108.
144
State v. Dickinson, 2012 WL 3573943, at *5 (Del. Super. Aug. 17, 2012).
145
See, e.g., id. at *7; see also State v. Taylor, 2016 WL 1714142, at *7-8 (Del. Super. Apr. 26,
2016), aff’d, 150 A.3d 776, 2016 WL 6311117 (Del. Oct. 27, 2016) (TABLE).
146
Trial Counsel Aff. ¶ 1, D.I. 116.
147
Id.25
committed. If the evidence on this defense raises a reasonable doubt
about to the defendant’s guilt, you must give the defendant the benefit
of that doubt and find the defendant not guilty.148
Notably, the identification instruction and the alibi instruction are similar in that they
both instruct the jury that it must be satisfied beyond a reasonable doubt that the
defendant committed the crime.149 As Postconviction Counsel noted when
investigating Appiah’s postconviction claims, Trial Counsel was “extremely
thorough in reviewing and arguing for jury instructions.”150 After her thorough
investigation, Trial Counsel reasoned that an identification instruction clashed with
the defense theory and thus opted for an alibi instruction, which is not objectively
unreasonable. Because Appiah’s claim fails on the performance prong, the Court
need not address prejudice.
148
Del. Super. P.J.I. Crim § 5.61 (2010).
149
State v. Kellum, 2010 WL 2029059, at *8 (Del. Super. May 19, 2020), aff’d, 12 A.3d 1154 (Del.
2011). See Del. Super. P.J.I. § 4.9 (2010), which states:
An issue in this case is the identification of the defendant. To find the defendant
guilty, you must be satisfied, beyond a reasonable doubt, that the defendant has
been accurately identified, that the wrongful conduct charged in this case actually
took place, and that the defendant was in fact the person who committed the act. If
there is any reasonable doubt about the identification of the defendant, you must
give the defendant the benefit of such doubt and find the defendant not guilty.
150
Mot. to Withdraw 26, D.I. 98. See also Trial Tr. 222:18–223:19, 224:21–226:12, D.I. 65.
26
b. Trial Counsel did not request all police statements and reports,
body-worn camera footage, surveillance footage, and fingerprint
and DNA analyses.
Appiah claims that Trial Counsel was ineffective because she did not request
all police statements and reports, body-worn camera footage, surveillance footage,
and fingerprint and DNA analyses.151
The record belies this. Trial Counsel’s discovery request, dated September
17, 2018, requested all material discoverable under Brady v. Maryland,152 any results
or reports of scientific tests, and “[c]opies of all audio or videotapes, which may
relate to the alleged incident in this case, including but not limited to, any law
enforcement body-worn camera footage or in-camera footage.”153 The State
provided all reports and camera footage.154 Further, by requesting results or reports
151
First Postconviction Filing 3-4, D.I. 80; Second Postconviction Filing 4, D.I. 81. According to
Appiah, the evidence would have confirmed his alibi and thus proven his innocence, and as such,
there is a reasonable probability that the outcome of the trial would have been different if it had
been requested. He also claims that by failing to request these items, Trial Counsel waived his
rights to these discovery materials. He does not, however, specifically allege what information
from the materials would have supported his alibi. First Postconviction Filing 3-4, D.I. 80; Second
Postconviction Filing 4, D.I. 81; Def.’s Reply Br. 10-11, D.I. 137.
152
373 U.S. 83 (1963). See Wright v. State, 91 A.3d 972, 987-88 (Del. 2014) (applying Brady).
Wright states:
Under Brady and its progeny, the State’s failure to disclose exculpatory and
impeachment evidence that is material to the case violates a defendant’s due
process rights . . . . There are three components of a Brady violation: (1) evidence
exists that is favorable to the accused, because it is either exculpatory or
impeaching; (2) that evidence is suppressed by the State; and (3) its suppression
prejudices the defendant.
Id. (internal quotation marks omitted).
153
A21-A23.
154
The State provided footage from six body-worn camera videos and redacted police reports
(which it is not require to provide) in its initial discovery package sent on November 15, 2018, and
27
of scientific tests and all material discoverable under Brady, any fingerprint reports
or DNA test results exculpating Appiah would have been produced if they existed,
however none did.155 Accordingly, Appiah’s claim is refuted by the record, which
shows that Trial Counsel did request such evidence, and all the evidence, that
actually exists, was produced. This claim fails the performance prong, and therefore,
the Court need not address the prejudice prong.
c. Trial Counsel did not request an Allen charge.
Appiah argues that Trial Counsel was ineffective for not requesting an Allen
charge,156 but fails to explain why this purported failure was objectively
unreasonable. In conclusory fashion, he claims he was prejudiced by the “error”
because there is a reasonable probability he would not have been convicted if the
instruction had been given.157 As noted above, jury instructions fall within trial
strategy.158 When the jury is unable to agree, an Allen charge, which emphasizes the
importance of jury deliberations and encourages a verdict, may be provided.159
Under some circumstances, however, an Allen charge can have a coercive effect.160
provided footage from nineteen additional body-worn cameras on four discs on February 27, 2019.
A24-25, A27, A30.
155
Trial Counsel asked the State if DNA was analyzed, but the DNA collected from Appiah was
not tested. Moreover, while a latent fingerprint was found on Kanu’s apartment door, it belonged
to Kanu. A71-72.
156
Second Postconviction Filing 4, D.I. 81; Def.’s Reply Br. 5-7, D.I. 137.
157
Second Postconviction Filing 4, D.I. 81; Def.’s Reply Br. 5-7, D.I. 137.
158
Dickinson, 2012 WL 3573943, at *5.
159
See Del. Super. P.J.I. § 4.40 (2010).
160
See Desmond v. State, 654 A.2d 821, 826 (Del. 1994) (explaining the factors used when
determining whether an Allen charge is coercive).
28
Here, Trial Counsel was concerned that the eleven-to-one split among the jurors was
in the State’s favor, and thus an Allen charge “would allow the jury to reach a
unanimous verdict of guilt rather than remain a hung jury, requiring a new trial.”161
The Court advised the parties, “I don’t think, given the [jury] note, that an Allen
charge is a good idea,” but entertained argument on the issue.162 After consulting
with Appiah,163 Trial Counsel told the Court that the defense agreed with the Court
and argued against the Allen charge.164 Trial Counsel had sound reason for her
concern that an Allen charge would coerce the one hold-out juror, and after
consulting with Appiah, she, in her professional opinion, believed the charge was
inappropriate. Trial Counsel’s strategic decision not to request an Allen charge was
objectively reasonable. Because this claim fails the performance prong, the Court
need not consider the prejudice prong.
d. Trial Counsel did not raise an objection to Kanu’s in-court
identification or move to suppress it.
Appiah argues Kanu’s in-court identification of him violated his Due Process
rights because it was unreliable, and therefore, by not objecting to the identification
or moving to suppress it, Trial Counsel was ineffective.165 He states that “no
161
Trial Counsel Suppl. Aff. ¶ 1, D.I. 129.
162
Jury Note Tr. 3:2-5, D.I. 77.
163
Appiah concedes Trial Counsel conferred with him on this issue. Def.’s Reply Br. 7, D.I. 137.
164
Jury Note Tr. 3:8-14, D.I. 77.
165
Third Postconviction Filing 3-8, D.I. 108; Fourth Postconviction Filing 1-2, D.I. 107; Def.’s
Reply Br. 8-9, D.I. 137.
29
reasonable trial strategy” can explain Trial Counsel’s failure to argue against the
admissibility of Kanu’s in-court identification because it would not have taken the
police eight months to arrest Appiah if Kanu could have named Appiah as the
intruder prior to the trial.166 Appiah further argues that he was prejudiced because
the outcome of the trial would have been different had Trial Counsel argued against
the identification’s admissibility, as evinced by the jury note expressing that
identification was an issue for one juror.167
Counsel is the determining authority on whether to object.168 Trial Counsel
stated there was no legal basis for her to attack the admissibility of the
identification.169 The State similarly states that “no evidentiary rule would support
an objection to Kanu’s in-court identification, nor does case law support a motion to
suppress the identification,” and the only way to challenge Kanu’s identification was
166
Third Postconviction Filing 3-8, D.I. 108; see also Fourth Postconviction Filing 8, D.I. 107.
According to Appiah, because Kanu had not previously identified Appiah through a photo line-up
or live line-up, Kanu, who could not remember Appiah’s name at the time of the crime, had no
independent basis for the in-court identification. Third Postconviction Filing 3-8, D.I. 108; see
also Fourth Postconviction Filing 2-7, D.I. 107. Appiah cites Neil v. Biggers in support of his
argument that the identification was unreliable, but he misunderstands the law. See 409 U.S. 188,
199 (1972) (holding that the witness’ identification originating from a suggestive show-up was
reliable under the totality of the circumstances). Biggers concerns the admissibility of an
identification originating from a suggestive identification procedure, and Delaware law does not
apply Biggers to initial in-court identifications. See id. at 199; see also Byrd v. State, 25 A.3d 761,
765 (Del. 2011) (holding that Biggers does not apply to in-court identifications that do not come
following an impermissibly suggestive pretrial identification).
167
See Third Postconviction Filing 7, D.I. 108.
168
Cooke v. State, 977 A.2d 803, 841 (Del. 2009) (citing Wainwright v. Sykes, 433 U.S. 72, 93
(1977) (Burger, C.J. concurring)).
169
Trial Counsel Aff. ¶ 2, D.I. 116.
30
through cross-examination at trial.170 Absent an unduly suggestive pretrial
identification procedure, Due Process is not invoked because questions regarding
the reliability of a proposed in-court identification affect the weight of the
identification, not its admissibility.171 Therefore, an allegedly unreliable in-court
identification should be attacked on cross-examination.172 Trial Counsel did cross-
examine Kanu about the inconsistencies between what he told police the night of the
crime versus his in-court identification.173 Because there was not a legal basis for
suppression of, or objection to, Kanu’s in-court identification and his Due Process
rights were not at stake, Trial Counsel was objectively reasonable in highlighting the
inconsistencies in Kanu’s testimony, rather than arguing that the identification was
inadmissible. Trial Counsel’s performance was objectively reasonable; as such, the
Court need not address the prejudice prong.
e. Trial Counsel did not request a Lolly/Deberry instruction.
Appiah argues that Trial Counsel was ineffective because she did not request
a Lolly/Deberry instruction for “missing evidence.”174 He claims the State (1) failed
170
State’s Resp. 32, D.I. 134.
171
Byrd, 25 A.3d at 764, 767.
172
Id. at 767.
173
Jury Trial Tr., March 13, 2019, D.I. 65 100:1–105:1. After Kanu testified that the head covering
exposed more of Appiah’s face than what he described to the police the night of the crime, Trial
Counsel said, “that is not what you told officers, is it?” Id. at 100:19. She then read his statement
from the police report, where Kanu said he could “only see eyes and nose.” Id. at 101:22. Trial
Counsel also cross-examined Kanu about his testimony that a gun was pointed at him. Id. at 102:5–
105:1.
174
Third Postconviction Filing 9-11, D.I. 108; Fourth Postconviction Filing 2-3, D.I. 107; Def.’s
Reply Br. 11-13, D.I. 137.
31
to collect and preserve gunpowder residue from Appiah’s clothing and hands the
night of the crime; (2) failed to conduct DNA comparison analyses on the shell
casings collected from Kanu’s apartment and a black glove allegedly found outside
Kanu’s apartment;175 and (3) failed to perform gunpowder residue testing on
Appiah’s gun, which would show he did not fire it.176 According to Appiah, failing
to collect and test the evidence was a violation of his Due Process rights,
necessitating a Lolly/Deberry instruction.177 Rather than explain why the outcome
of trial would have been different had the instruction been given, Appiah focuses on
the fact that if the evidence had been provided, it would have exculpated him.178
If the State fails to gather or preserve physical evidence that it is has a duty to
disclose under Superior Court Criminal Rule 16179 or that falls under the scope of
Brady v. Maryland,180 the defendant may be entitled to an inference that the “missing
evidence” would have been exculpatory.181 Delaware case law does not require the
175
See Third Postconviction Filing 9, D.I. 108; Third Postconviction Filing App. 421, D.I. 108.
Only Appiah addresses the black glove – it was not admitted into evidence at trial.
176
Third Postconviction Filing 9, D.I. 108; Fourth Postconviction Filing 3, D.I. 107; Def.’s Reply
Br. 11-12, D.I. 137.
177
Third Postconviction Filing 11, D.I. 108; Def.’s Reply Br. 13, D.I. 137.
178
Third Postconviction Filing 11, D.I. 108.
179
Superior Court Criminal Rule 16 requires that upon the defendant’s request, the State shall
permit the defendant to inspect and copy or photograph, inter alia, tangible objects and results or
reports of scientific tests or experiments that are within the State’s possession, custody or control,
and are either material to the preparation of the defendant’s defense or are intended for use by the
state as evidence in chief at the trial, or were obtained from or belong to the defendant. Super. Ct.
Crim. R. 16(a)(1)(C)-(D).
180
See supra note 151.
181
Coleman v. State, 289 A.3d 619, 626 (Del. 2023).
32
State to seek out exculpatory evidence or perform any specific testing on physical
evidence it gathers.182 As to the gunpowder residue – the State did not have a duty
to collect and preserve gunpowder residue under Rule 16 because the State did not
intend to use it in its case-in-chief,183 and the record does not show that gunpowder
residue was material to the preparation of Appiah’s defense.184 Nor did the State
have a duty to collect and preserve gunpowder residue under Brady, because the
State had no reason to believe it would have been exculpatory.185 The remainder of
Appiah’s “missing evidence” argument fails because there is no duty to test
evidence,186 therefore the State’s choice not to perform DNA testing or gunpowder
residue testing does not necessitate a Lolly/Deberry instruction. Because a
Lolly/Deberry instruction would have been inapplicable, Trial Counsel was not
182
Powell v. State, 49 A.3d 1090, 1101 (“[F]or the police to have a duty to collect and preserve
specific evidence, the police must have had a reason, at that time, to believe the evidence might be
exculpatory . . . . [W]e have also held that ‘the duty to preserve exculpatory evidence
does not include a duty to seek out exculpatory evidence.’”) (emphasis in original) (citing Mason
v. State, 963 A.2d 139 (Del. 2009)); Dennis v. State, 2013 WL 1749807, at *3 (Del. Apr. 23, 2013)
(“Delaware law does not require that the State perform any specific testing on the physical
evidence that it gathers.”).
183
State’s Resp. ¶ 58, D.I. 134.
184
Id. ¶ 60.
“Appiah has not shown – or alleged – that the allegedly missing evidence would be
‘material’ to preparing his defense. The record does not show the ‘missing
evidence’ was central to Appiah’s case, was important to establishing the elements
of one of his crimes, or had an effect on the jury’s decision to convict.”
Id.
185
See id. ¶¶ 58-59.
186
The State does not have a duty to test evidence, only a duty to supply reports and results of tests
it actually conducts. Here, the State did not conduct DNA or gunpowder residue testing. The duty
to preserve exculpatory evidence does not include a duty to seek out exculpatory evidence.
Coleman, 289 A.3d at 627 (quoting Powell, 49 A.3d at 1101).
33
objectively unreasonable for not requesting it. Because Appiah has not proved the
performance prong, the Court need not analyze the prejudice prong.
f. Trial Counsel did not hire an “effective expert” to cross-examine
and/or impeach the State’s ballistics expert.
Appiah argues that Trial Counsel was ineffective because she did not hire an
“effective expert” to cross-examine and/or impeach the State’s ballistic expert,
Freese.187 Appiah contends that he was entitled to his own expert,188 and therefore
the failure to hire one amounted to a “complete breakdown in the adversarial
process.”189 Appiah claims that had an “effective expert” been hired, there is a
reasonable probability that the jury would have discounted Freese’s opinion.190
The decision not to hire an expert is a strategic one, and after investigation of
the facts and law, it is virtually unchallengeable.191 After reviewing the evidence,
preparing a defense, and working with her office’s in-house forensic firearms
specialist, Trial Counsel did not believe hiring an outside ballistics expert would be
187
Third Postconviction Filing 12-17, D.I. 108; Fourth Postconviction Filing 3, D.I. 107.
188
Appiah relies on State v. Gallaway, 2015 WL 4460992, at *1 (Del. Super. July 16, 2015)
(holding that the indigent defendant’s trial was fundamentally unfair because he was not provided
an expert to aid him in his defense).
189
Third Postconviction Filing 12-17, D.I. 108; Def.’s Reply Br. 13-16, D.I. 137.
190
Third Postconviction Filing 17, D.I. 108.
191
See Hinton v. Alabma, 571 U.S. 263, 275 (2014) (“The selection of an expert witness is a
paradigmatic example of the type of ‘strategic choic[e]’ that, when made ‘after thorough
investigation of [the] law and facts,’ is ‘virtually unchallengeable.’”); see also State v. Jackson,
2014 WL 4407844 at *6 (Del. Super. Sept. 3, 2014) (“To be sure, the guarantee [of] assistance of
counsel subsumes a right to access to expert testimony in appropriate cases. The Sixth Amendment
does not require however, and this court will not undertake, a Daubert-like inquiry to determine if
an expert consulted by defense counsel was ‘qualified.’”).
34
beneficial.192 This was confirmed by Master Sergeant Vincent Consiglio, a State
Armorer at the Delaware Army National Guard, who Postconviction Counsel hired
to investigate the ballistics evidence.193 After Consiglio reviewed Freese’s reports
and testimony and examined the firearm-related discovery and trial photographs, he
reached the same conclusions as Freese.194 Trial Counsel investigated whether
hiring an outside ballistics expert would be beneficial, and made a strategic and
objectively reasonable choice not to hire one after she concluded doing so would not
be beneficial. Appiah has failed to prove that Trial Counsel’s performance in this
regard was objectively unreasonable, so the Court need not address prejudice.
g. Trial Counsel did not hire an independent examiner to test for
DNA and gunpowder residue.
Appiah contends that Trial Counsel was ineffective because she did not hire
an independent examiner to test the glove, the swabs collected from the shell casings,
and Appiah’s gun for DNA and gunpowder residue.195 Appiah does not explain why
this was objectively unreasonable, stating only that he was prejudiced because the
test results would have “tend[ed] to prove that someone else may have had access to
the gun without Appiah’s permission,” and therefore the outcome of the trial would
192
Trial Counsel Aff. ¶ 4, D.I. 116.
193
Mot. to Withdraw 38, D.I. 98.
194
Id.195
Third Postconviction Filing 21-22, D.I. 108; Fourth Postconviction Filing 4, D.I. 107; Def.’s
Reply Br. 17-18, D.I. 137.
35
have been different.196 Trial Counsel did not hire an independent examiner
because after her consultation with an in-house forensics specialist, she did not think
additional testing would benefit her client.197 Trial Counsel’s decision to act in the
best interests of her client was objectively reasonable. Because Appiah’s failure to
satisfy the performance prong disposes of this claim, the Court need not address
prejudice.
h. Trial Counsel did not request a continuance to subpoena the
police officer who observed drug paraphernalia in Kanu’s
apartment.
Appiah argues Trial Counsel was ineffective because she did not request a
continuance to subpoena the police officer who observed drug paraphernalia in
Campbell’s room after the Court “prevented Appiah from introducing the drug
evidence.”198 He does not articulate how this was objectively unreasonable, but
argues the officer’s testimony was relevant to proving bias of the State’s witnesses
and undermining the credibility of the State’s motive theory.199 According to
Appiah, he was prejudiced because his constitutional rights to a complete defense
and confrontation of witnesses were violated.200
196
Third Postconviction Filing 22, D.I. 108.
197
Trial Counsel Aff. ¶ 6, D.I. 116.
198
Third Postconviction Filing 24, D.I. 108; see also Fourth Postconviction Filing 4-5, D.I. 107;
Def.’s Reply Br. 20-21, D.I. 137.
199
Third Postconviction Filing 23, D.I. 108.
200
Id. at 24-25.
36
As a threshold issue, the Court must determine whether this ineffective
assistance claim is procedurally barred because although it is now framed as an
ineffective assistance of counsel claim, the underlying issue of admissibility of the
drug paraphernalia was previously adjudicated at trial and on direct appeal. The
Delaware Supreme Court has held that “the mere fact that a postconviction relief
claim might bear some resemblance to a formerly adjudicated claim” will not trigger
Rule 61(i)(4), but when there has been a prior, substantive adjudication of the
underlying error, a claim will be deemed formerly adjudicated.201 Here, the
substance of Appiah’s claim was adjudicated on the merits at trial and on appeal.
When cross-examining Campbell, Kanu’s roommate at the time of the crime, Trial
Counsel attempted to introduce the fact that drug paraphernalia was found in
Campbell’s room, but upon the State’s objection, the Court ruled that evidence was
“too far afield.”202 After the Court took a recess for the day, Trial Counsel reargued
that she should be allowed to “call in the officer who actually found those
materials.”203 The Court repeated that the drug paraphernalia evidence was too far
afield and failed under D.R.E. 403.204 Furthermore, the Due Process claim
embedded within Appiah’s ineffective assistance of counsel claim lacks merit.
201
Green, 238 A.3d at 175-76; see also State v. Jones, 2022 WL 2827004, at *6-7 (Del. Super.
July 20, 2022), aff’d, Jones v. State, 294 A.3d 1079, 2023 WL 2577756 (Del. Mar. 20, 2023)
(TABLE).
202
Trial Tr., Mar. 12, 2019 81:16–85:18.
203
Id. 125:15-16.
204
Id. at 126:18–130:13.
37
There is no unfettered right to present any and all evidence – the Delaware Rules of
Evidence set limits to ensure fair proceedings.205 Here, because any probative value
stemming from testimony about the drug paraphernalia was substantially
outweighed by the potential for prejudice, the Court properly denied it. On appeal,
the Supreme Court affirmed the judgment of this Court, deeming the evidence
“speculative” and of “marginal relevance.”206
Assuming, arguendo, that the claim is not procedurally barred as formerly
adjudicated, it still fails. The decision whether to call a witness is a strategic
decision.207 Given the Court’s rulings, Trial Counsel properly recognized that a
continuance request to further pursue admission of the evidence would be
unsuccessful.208 She advocated for its admission twice, and she was not objectively
unreasonable for not raising the losing argument a third time. Because this claim
fails on the performance prong, the Court need not address the prejudice prong.
2. Appiah’s Claims Against Appellate Counsel
a. Appellate Counsel did not appeal the denial of Trial Counsel’s
request for the Department of Justice’s notes from Kanu’s
pretrial interviews.
Appiah contends that Appellate Counsel was ineffective because she failed to
argue that the Superior Court abused its discretion when it allegedly denied Trial
205
D.R.E. 102.
206
Appiah, 2020 WL 7625353, at *3.
207
Sierra v. State, 242 A.3d 563, 573-74 (Del. 2020).
208
Trial Counsel Aff. ¶ 7, D.I. 116.
38
Counsel’s request for the notes from Kanu’s pretrial interviews (“the Brady
issue”)209 on appeal.210 Appiah asserts that Kanu’s out-of-court pretrial statements
were material to impeach Kanu’s credibility, making the notes Brady/Jencks
material, and therefore the Court’s denial of Trial Counsel’s request prejudiced him
because he could not effectively cross-examine Kanu.211 Appiah once again fails to
explain how Appellate Counsel’s conduct rises to the level of objectively
unreasonable conduct. He simply states there is a reasonable probability that the
outcome of the appeal would have been different.212
To be clear, the Court did not deny Trial Counsel’s request. In fact, the Court
ordered the State to provide copies of the social worker’s notes to Trial Counsel prior
to her cross-examination of Kanu,213 which the State did.214 Trial Counsel raised the
Brady issue several times,215 and the Court determined there was no Brady
violation.216 Therefore, Appiah’s argument fails as a threshold matter because it is
209
Appellate Counsel Aff. ¶¶ 13-15, D.I. 121; see also State’s Resp. ¶¶ 20-25, D.I. 134.
210
First Postconviction Filing 3-4, D.I. 80; Second Postconviction Filing 4, D.I. 81. In his Reply
Brief, Appiah alters this argument, stating Appellate Counsel was ineffective because she failed to
argue that by not producing the Department of Justice’s investigator notes from Kanu’s pretrial
interview, the State violated Jencks/Brady. Def.’s Reply Br 1-2, D.I. 137.
211
Second Postconviction Filing 3-4, D.I. 81. Def.’s Reply Br. 1-2, D.I. 137. Jencks only concerns
the witness’ own statements, not notes and summaries, and therefore is not applicable here. See,
e.g., Hooks v. State, 416 A.2d 189, 200 (Del. 1980). Trial Counsel conceded this was not a Jencks
issue, and regardless, the State provided all Jencks material. A158.
212
Second Postconviction Filing 4, D.I. 81; Def.’s Reply Br. 2, D.I. 137.
213
A147, A152-53.
214
A153. Any attorney work product was redacted. Id.215
A147-48, A150-51, A154-58.
216
A154-56, A158. To the extent Appiah’s argument refers to any other Department of Justice
notes, the State represented that it had produced all Brady material and none of the notes contained
39
belied by the record. Because Appiah’s claim is belied by the record, Appiah fails
to prove Appellate Counsel was objectively unreasonable.217 Accordingly, the Court
need not address the prejudice prong.
b. Appellate Counsel did not appeal the denial of the Motion for Judgment
of Acquittal on the Burglary First Degree charge.
Appiah asserts that Appellate Counsel was ineffective because she failed to
argue on appeal that the Superior Court erred when it denied Trial Counsel’s Motion
for Judgment of Acquittal on the charge of Burglary First Degree.218 Appiah seems
to argue that there was insufficient evidence for a rational trier of fact to find the
essential elements of Burglary First Degree beyond a reasonable doubt.219 He fails
to explain how Appellate Counsel was objectively unreasonable and what prejudice
he suffered as a result. He merely states that his insufficiency argument was
strong.220 The conclusory nature of this claim alone ends the inquiry.
any inconsistencies contradicting the “key portions of the charges,” therefore they were not
impeachment evidence. A158.
217
In her affidavit, Appellate Counsel stated that she did not believe there was prejudice; therefore,
she pursued what she believed to be a stronger claim. Appellate Counsel Aff. ¶¶ 14-15, D.I. 121.
Because the record belies Appiah’s claim, the Court need not address the reasonableness of
Appellate Counsel’s decision, but nonetheless emphasizes that Appellate Counsel was not required
to raise all possible issues on appeal, and Appiah offers no explanation as to why his proffered
argument is “clearly stronger.” See Ploof, 75 A.3d at 831-32.
218
Def.’s Resp. Mot. to Withdraw 3-4, D.I. 107; Def.’s Second Am. Mot. Postconviction Relief
18, D.I. 108; Def.’s Reply Br. 19, D.I. 137.
219
Def.’s Resp. Mot. to Withdraw 3-4, D.I. 107; Def.’s Second Am. Mot. Postconviction Relief
18-21, D.I. 108.
220
Def.’s Second Am. Mot. Postconviction Relief 21, D.I. 108.
40
Assuming, arguendo, that Appiah had substantiated his claim, he fails to
prove Appellate Counsel was objectively unreasonable for waiving the argument.
Appellate Counsel believed that the insufficiency argument lacked merit, especially
in light of the standard, which is favorable to the State.221 Given this, she made a
strategic choice to forego that argument and raise arguments she believed were
stronger. This was not objectively unreasonable. Accordingly, the Court need not
address prejudice.
3. Appiah’s Claims Against Postconviction Counsel
Appiah claims that Postconviction Counsel was ineffective for failing to hire
experts in his defense.222 A claim of ineffective assistance of postconviction counsel
is not viable, because there is no constitutional right to counsel in a postconviction
proceeding.223 The ineffective assistance of postconviction counsel claims fail.
221
Appellate Counsel Aff. ¶¶ 17-19, D.I. 121. See Burrell v. State, 766 A.2d 19, 24-25 (Del. 2000)
(“[The Supreme] Court reviews claims of insufficient evidence to determine whether, viewing all
the evidence in the light most favorable to the State, ‘any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.’”).
222
Appiah argues that Postconviction Counsel was ineffective because he failed to hire an
“effective expert” who could cross-examine and/or impeach the State’s ballistics expert, and
because he failed to hire an independent examiner to test for DNA and gunpowder residue. Third
Postconviction Filing 17, 21-22, D.I. 108; Fourth Postconviction Filing 4-5, D.I. 107.
223
Asbury v. State, 219 A.3d 994, 2019 WL 4696781, at *4 (Del. Sept. 25, 2019) (TABLE). The
Court notes these claims are identical to the claims Appiah asserts against Trial Counsel, which,
as discussed above, fail.
41
C. Appiah’s Due Process Claims
1. The State’s Failure to Produce All Notes from Kanu’s Pretrial
Interviews Violated Jencks and Brady.
Appiah claims that the State’s failure to produce all the Department of
Justice’s notes from Kanu’s pretrial interviews violated Jencks and Brady.224 This
issue was addressed at trial. After Trial Counsel objected to Kanu’s inconsistent
testimony and raised the Brady argument at sidebar, Trial Counsel was provided
with the social worker’s notes.225 After reviewing them, Trial Counsel moved for a
mistrial.226 The Court denied the motion, stating:
So you now have the inconsistent statement made at the pretrial
conference. I believe Mr. Bloom . . . made a mistake. I don’t find any
ill-intent, or deliberate concealment. You have the Jury. You have Mr.
Kanu. You can now cross-examine. And you have not articulated how
you would have done anything differently . . . . There is no basis for a
mistrial here because you haven’t said anything about how you would
have handled your case differently . . . . I am not finding grounds for a
mistrial. You knew coming into trial that Mr. Kanu planned to testify
that Mr. Appiah was the shooter. That he identified Mr. Appiah. That
is no surprise. You knew from the police camera – and I am just
surmising because I am at a disadvantage because I have not seen all of
the evidence yet – but you knew, based on your arguments before now,
that Mr. Kanu was going to say he had a gun. I understand you are
claiming that this is new evidence that it was held at his head. The
purpose of a trial is to find the truth. You can cross-examine the
224
First Postconviction Filing, D.I. 80; Second Postconviction Filing 3-4, D.I. 81; Def.’s Reply
Br. 1-2, D.I. 137. As noted supra note 207, Jencks only concerns the witness’ own statements, not
notes and summaries, and therefore is not applicable here. See Hooks, 416 A.2d at 200. Trial
Counsel conceded this was not a Jencks issue, and regardless, the State provided all Jencks
material. A158.
225
A153.
226
A155-56.
42
defendant about the inconsistency of that statement. But we are going
to move on.227
Appiah did not raise this claim on direct appeal. Therefore, this claim is barred under
Rule 61(i)(4) because it was formerly adjudicated in the proceedings leading to
Appiah’s conviction.
2. The Police’s Use of an Unduly Suggestive Identification Procedure that
Relied on Unreliable or Materially Compromised Ballistic Evidence
Violated Appiah’s Due Process Rights.
Appiah argues that his Due Process rights were violated because the police
relied on an unduly suggestive procedure based on unreliable or materially
compromised ballistics evidence to identify Appiah.228 Appiah did not raise this
issue on direct appeal, and therefore it is procedurally barred under Rule 61(i)(3) as
procedurally defaulted. Appiah cannot circumvent this bar because he has not
proven cause and prejudice,229 nor has he attempted to satisfy the pleading
requirements set forth in Rule 61(d)(2)(i) or (d)(2)(ii).230
227
A154-56.
228
First Postconviction Filing 4, D.I. 80; Second Postconviction Filing 3-4, D.I. 81; Def.’s Reply
Br. 3-4, D.I. 137. Appiah argues the evidence was unreliable or materially compromised by Carl
Rone’s involvement, but Rone had “nothing to do with [Appiah’s] case.” A68. It appears that he
further argues Rone’s alleged involvement led to Appiah’s identification, and hence constituted an
unduly suggestive identification procedure, however the ballistics evidence was circumstantial
evidence, not an eyewitness identification. See Goode v. State, 136 A.3d 303, 309 (Del. 2019)
(explaining an unduly suggestive identification is one in which improper police conduct creates a
substantial likelihood of misidentification by an eyewitness).
229
See Super. Ct. Crim. R. 61(i)(3)(A)-(B).
230
See Super. Ct. Crim. R. 61(i)(5); Super. Ct. Crim. R. 61(d)(2)(i)-(ii).
43
D. Appiah’s Cumulative Error Claim
In a final effort to obtain relief, Appiah states that the “numerous errors
outlined in these claims of ineffective assistance of counsel” trigger the cumulative
error doctrine.231 A cumulative error must derive from multiple prejudicial errors.232
A cumulative review of unfounded allegations of ineffective assistance of counsel
cannot change the outcome of the analysis.233 Here, Trial and Appellate Counsel did
not commit any professional errors, and a cumulative review of their representation
likewise reveals no material defects that deprived Appiah of a substantial right or
that resulted in manifest injustice. Accordingly, Appiah’s final claim fails.
V. CONCLUSION
After reviewing the record, the briefing and evidence submitted by the parties,
and the statutory and decisional law, the Court finds that Appiah’s postconviction
claims are meritless. His ineffective assistance of counsel claims do not demonstrate
that Trial or Appellate Counsel were objectively unreasonable. His Due Process
claims are similarly meritless. Appiah has not presented any contrary evidence to
overcome the presumption of regularity. Accordingly, his Motion for
Postconviction Relief234 is DENIED. Because the Court finds Appiah’s claims
231
Third Postconviction Filing 25, D.I. 108; Def.’s Reply Br. 24-25, D.I. 137.
232
Michaels v. State, 970 A.2d 223, 231 (Del. 2009).
233
Zebroski v. State, 822 A.2d 1038, 1049 (Del. 2003), overruled on other grounds by Bass v.
State, --- A.3d ---, 2023 WL 4093415 (Del. June 20, 2023).
234
This includes all filings.
44
meritless, his Motion for Rule 61 Discovery is DENIED as MOOT. Postconviction
Counsel’s Motion to Withdraw is GRANTED.
IT IS SO ORDERED.
/s/ Jan R. Jurden
Jan R. Jurden, President Judge
45