State v. Kellam ( 2024 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
) ID No.: 1506014357
v. )
)
)
STEVEN KELLAM, )
)
Defendant. )
Submitted: April 8, 2024
Decided: May 22, 2024
MEMORANDUM OPINION AND ORDER
Upon Defendant’s Motion for Postconviction Relief (R-1)
GRANTED IN PART AND DENIED IN PART
Kathryn Garrison, Esquire, Deputy Attorney General, Department of Justice, 13
The Circle, Georgetown, DE 19947; Attorney for State of Delaware.
Zachary A. George, Esquire, Hudson Jones Jaywork & Fisher, LLC, 225 South
State Street, Dover, DE 19901; Attorney for Defendant Steven Kellam.
JONES, J.
Procedural Background
On June 22, 2015, an indictment against Steven Kellam (“Mr. Kellam” or
“Petitioner”) was returned by the Grand Jury. Count 1 alleged Criminal
Racketeering.1 Count 2 alleged Conspiracy to Commit Racketeering. 2 It was
alleged that Mr. Kellam participated in a criminal enterprise through a "pattern
of racketeering activity." The "pattern of racketeering activity" was outlined in
five sub-paragraphs to Count 1. In the indictment, the State relied upon five
predicate events to establish a pattern:
(1) the January 13, 2014 murders of Cletis Nelson and William Hopkins;
(2) the May 18, 2014 home invasion of Isaiah Phillips;
(3) the August 22, 2014 home invasion of Ashley Moore;
(4) the December 11, 2014 home invasion of Milton Lofland; and
(5) the December 14, 2014 home invasion of Azel Foster.
The original indictment also included independent charges that corresponded to
all the alleged predicate events.
An Amended Indictment was filed on September 1, 2017; a second
Amended Indictment was filed on September 15, 2017; a third Amended
1
11 Del. C. § 1503(a).
2
11 Del. C. § 1503(d).
2
Indictment was filed on September 19, 2017; and a corrected version of the third
Amended Indictment was filed on September 21,2017. Mr. Kellam went to trial
on the third Amended Indictment.
Each Amended Indictment was described as exactly that: an amended
indictment. They were no re-indictments. There was no subsequent indictment
presented to the Grand Jury. Only one True Bill was returned by the Grand Jury
and that was the original indictment dated June 22, 2015.
Beginning with the first amended indictment, and for every subsequent
indictment, including the indictment on which Petitioner proceeded to trial, the
language in Count 1, Criminal Racketeering was modified. Instead of alleging
five predicate events serving as the basis for "pattern of racketeering activity,"
these indictments alleged only three predicate events:
(1) the January 13, 2014 murders of Cletis Nelson and William Hopkins;
(2) the December 11, 2014 home invasion of Milton Lofland; and
(3) the December 14, 2014 home invasion of Azel Foster.
3
Additionally, the subsequent indictments eliminated the actual criminal charges
which resulted from the two predicate events that were deleted: the events of May
18, 2014 and August 22, 2014. 3
Prior to trial, on February 23, 2016, Trial Counsel filed a Motion to Suppress
challenging the validity of a search warrant to intercept telephone
communications. The State filed its Answer to the Motion to Suppress on March
18, 2016. Mr. Kellam filed his Response on March 31, 2016. Because of a
recusal by the trial court judge, a visiting judge considered the Motion and
denied it on July 6, 2016.
Prior to trial, and also on February 23, 2016, Trial Counsel filed a Motion to
Sever the murder charges from the other charges. The State filed its Answer to the
Motion to Sever on March 18, 2016. Mr. Kellam filed his Response on March
31, 2016. The Court held oral argument on November 23, 2016 and denied the
Motion from the bench that same day.
At the close of Mr. Kellam's trial, the judge instructed the jury on the elements
of all the charges. When instructing the jury on the elements of felony murder, the
3
In the original indictment, those charges were listed as Counts 27-40 (pertaining to the home
invasion of Isiah Phillips on May 18, 2014) and Counts 41-46 (pertaining to the home invasion
of Ashley Moore on August 22, 2014).
4
jury was charged with the following statement of law: "in order to find the defendant
guilty of murder in the first degree, you must find ... the person's death occurred in
the course of or in furtherance of the defendant's commission of a felony."
A prayer conference was held prior to the administration of the jury
instructions. The discussion shows that all parties were aware of and concerned
with the distinctions between Mr. Kellam being charged as a principal tried for
his own conduct and as an accomplice being held accountable for the conduct
of his co-defendants. The parties and the trial court discussed the accomplice
liability instructions of 11 Del. C. § 271, et seq, but none present, neither at the
prayer conference nor in the time allotted for revision after, noticed the absence
of a 11 Del. C. § 274 Chance 4 instruction on different degrees of the offenses.
As Mr. Kellam was charged on a theory of accomplice liability, the judge
gave the jury an 11 Del. C. § 271 accomplice liability instruction. Because the
State relied heavily on testimony of individuals who had taken plea deals in
association with their involvement in the charged incidents, the judge also gave
the jury an accomplice testimony instruction.
4
Chance v. State, 685 A.2d 351 (Del. 1996).
5
The trial judge did not give the jury an 11 Del. C. § 274 Chance
instruction on the individualized consideration of Kellam's culpability for his
own mental state and his own accountability for aggravating factors. General
mens rea requirements were brought up as the charges were listed, but unlike
the specific accomplice testimony and accomplice liability instructions, there
was no specific discussion of the § 274 additional requirements for offenses
with different degrees and involving two or more persons. While § 274
incorporates § 271 by reference, the reverse is not true; thus, § 274 is not
incorporated by reference.
On September 25, 2017, after a jury trial, Mr. Kellam was convicted of 38
criminal offenses, including one count of Racketeering, two counts of First Degree
Murder, three counts of Home Invasion, two counts of First Degree Robbery, three
counts of Second Degree Conspiracy, one count of First Degree Attempted Robbery,
one count of Third Degree Assault, one count of Second Degree Assault, one count
of Wearing a Disguise during the Commission of a Felony, and 23 counts of
Possession of a Firearm During the Commission of a Felony. On March 23, 2018 he
6
was sentenced to two life sentences plus 769 years at Level 5.5 On June 13, 2019,
his conviction was upheld by the Delaware Supreme Court on direct appeal.
On August 28, 2019, Mr. Kellam filed a timely pro se Rule 61 Petition and
Request for Appointment of Counsel. On October 15, 2021, Postconviction Counsel,
having been appointed, filed an Amended Rule 61 Petition. The Petition asserted
five claims: one claim of lack of jurisdiction (defective indictment); three claims of
ineffective assistance of trial counsel (“Trial Counsel”); and one claim of cumulative
error. Trial Counsel filed an affidavit (the “Trial Counsel Affidavit”) on January 12,
2022. The State filed its Response on March 4, 2022. Mr. Kellam filed his Reply on
October 31, 2022.
On October 31, 2922, Mr. Kellam also filed a motion to further amend the
Petition, together with the proposed Amendment (the Amended Rule 61 Petition, as
further amended, the “Petition”). He added new claims: that Trial Counsel was
ineffective, both at trial and on direct appeal, for failing to object to (1) an erroneous
felony murder jury instruction under Ray v. State,6 and (2) the absence of a Chance7
5
A chart is attached as Exhibit A hereto summarizing the Counts in the Indictment, the Offenses
charged of which Mr. Kellam was convicted, the number of years of Level 5 incarceration given
for each, and, where appropriate, additional comments.
6
Ray v. State, 280 A.3d 627 (Del. 2022).
7
Chance v. State, 685 A.2d 351 (Del. 1996).
7
instruction under 11 Del. C. § 274 with respect to felony murder. The Superior Court
granted the motion on February 9, 2023 and accepted the additional claims. The
State filed its Response on April 3, 2023. Mr. Kellam filed his Reply on May 17,
2023, in which he expanded his argument to include a claim that Trial Counsel
also should have requested § 274 Chance instructions not just for the felony
murder charge, but also for the robbery, assault, and home invasion charges. On
September 26, 2023, the State filed a Corrected Response.
On September 25, 2023 I required Trial Counsel to submit a supplemental
affidavit (the “Supplemental Trial Counsel Affidavit”) addressing the claims in the
Amended Rule 61 Petition, within sixty days. Trial Counsel filed his Supplemental
Trial Counsel Affidavit on November 16, 2023. However, in the Supplemental Trial
Counsel Affidavit, Trial Counsel did not address the expanded claims in Mr.
Kellam’s May 17, 2023 Reply with respect to the lack of § 274 Chance instructions
not just for the felony murder charges, but also for the robbery, assault, and
home invasion charges.
The Superior Court set June 22, 2023 as the date for oral argument in this case.
However, in preparing for oral argument, it discovered a conflict of interest.
Although on July 10, 2023 the parties filed a Waiver of Potential Conflict of Interest,
8
signed under oath by Petitioner, the Superior Court entered an Opinion on July 10,
2023, in which the Judge recused himself.
The case was reassigned to me. I held oral argument on Monday, September
25, 2023. At oral argument, I asked counsel to address the impact of vacating the
two felony murder convictions, specifically which other convictions must also be
vacated, and whether the Rule 61 Petition was ripe for adjudication. After oral
argument, I asked counsel to file written post oral argument briefs. The State filed its
Supplement After Oral Argument on January 22, 2024. Mr. Kellam filed Petitioner’s
Post Oral Argument Written Submission on February 29, 2024.
On March 7, 2024 I requested that Trial Counsel file a Second Supplemental
Trial Counsel Affidavit. He did so on April 8, 2024. On April 10, 2024 I advised the
parties that, although no additional briefing was necessary, either party could file
additional material responding to the Second Supplemental Trial Counsel Affidavit
by May 10, 2024. No party did so.
This is my decision on the Petition.
Ripeness
I asked counsel at oral argument to address whether the Rule 61 Petition is ripe
for adjudication at this time if the two felony murder convictions and the related
PFDCF convictions are vacated, given the Level V time remaining to be served on
9
the remaining unrelated convictions. Mr. Kellam was sentenced to a total of 769 years
at Level V plus two life sentences. If the two life sentences are vacated, 150 years of
Level V time for the related PFDCF convictions would also be vacated. However,
this still leaves a total of 619 years at level V to be served on the unrelated convictions.
It is unlikely that Mr. Kellam will ever serve out those sentences. Mr. Kellam argues
that his Rule 61 Petition is ripe for adjudication given that the remaining unrelated
convictions are subject to pardon or parole, making it uncertain whether he will serve
out those sentences. The State argues that this is a highly unlikely scenario, and thus
the Rule 61 Petition does not present an “actual controversy” and is not ripe for
adjudication.
Our Supreme Court, in affirming the Superior Court’s denial of a defendant’s
motion for correction of sentence, has held “that the issue [defendant] raises
regarding his sentence on the weapon offenses does not appear to be ripe for
consideration in light of [his] four life sentences without parole.” 8 In a subsequent
decision in that case, the Superior Court stated:
As the Delaware Supreme Court already noted in a prior motion filed
by Defendant seeking a correction of his sentence, Defendant's issues
regarding his sentences on the weapons offenses does not appear to be
ripe for consideration in light of the fact that he is serving life sentences
without parole. Defendant must first serve his life sentences before he
8
Govan v. State, 832 A. 2d 1251 (Table) (Del. 2003).
10
begins serving the sentences on the weapon convictions. Because
Defendant is unlikely to ever serve those sentences, he does not appear
to present an “actual controversy.” Delaware courts are not required to
expend judicial resources to answer questions that have no significant
current impact.9
Two other 2010 cases are in accord. In a Superior Court case, defendant moved for
postconviction relief after a jury convicted him, inter alia, of two counts of murder
and he was sentenced to two life sentences plus additional time for other offenses.
In denying the motion, the Court stated:
Defendant's motion should be summarily dismissed because his issue
regarding his life sentence on the Attempted First Degree Murder
conviction is not ripe for consideration. Defendant must first serve his
life sentence for First Degree Murder, without probation or parole or
any other reduction, before he will begin to serve his life sentence on
the Attempted First Degree Murder conviction. Defendant does not
challenge his life sentence, without probation or parole, on his First
Degree Murder conviction. In addition, Defendant must serve an
additional 86 years on the Second Degree Murder, conspiracy and
weapons convictions. Because Defendant must first serve his life
sentence without probation, parole or any other reduction for his First
Degree Murder conviction, it is unlikely he will ever serve any of the
other remaining sentences. Thus, Defendant does not appear to present
an “actual controversy” at the present time. Delaware courts are not
required to expend judicial resources to answer questions that have no
significant current impact. 10
In a Supreme Court case affirming a decision of the Superior Court denying
defendant’s motion for correction of illegal sentence, the Court stated:
9
Govan v. State, 2010 WL 3707416, at *1 (Del. Super. Aug. 31 2010) (Comm’s Order).
10
State v. Twyman, 2010 WL 4261921 (Del. Super. Oct. 19, 2010).
11
Equally meritless is Marvel’s second claim that the start date on his life
sentence is erroneous. Marvel must serve the remainder of his life in
prison. There is no indication that the start date of his sentence,
erroneous or not, has any “significant current impact” on him or
presents any “actual controversy” ripe for consideration by this Court.
Finally, in a recent Superior court case, a jury found defendant guilty of
several rape and other sexual offenses. He was sentenced to seven life sentences.
The Superior Court denied his second motion for postconviction relief, stating:
Defendant cannot demonstrate prejudice under Strickland – a
reasonable probability of a different result at trial - from counsel's
failure to object to the State's omission of the tolling provision in the
Indictment. Even if counsel successfully objected to those counts, the
same objection would not have applied to Counts V-XXI, and the
Defendant was sentenced to seven life sentences without the possibility
of release for the Rape First Degree convictions, plus more than eighty
years of incarceration on the remaining convictions. Because
Defendant is unlikely to serve out the seven life sentences, his claim
does not present an “actual controversy.” 11
If I vacate the two felony murder convictions and the related PFDCF
convictions, Mr. Kellam is unlikely to serve out the amount of Level V time
remaining on the unrelated convictions. At first blush, therefore, it would appear that
his Rule 61 claims as to the felony murder convictions and the related gun charges
are not ripe for adjudication. However, unlike the two felony murder convictions,
which require imprisonment for the remainder of a person’s natural life ”without
11
State v. Hearne, 2023 WL 2980324 (Del. Super. April 17, 2023).
12
benefit of probation or parole or any other reduction,” 12 Mr. Kellam has the benefit
of probation, parole, or reduction with respect to the remaining unrelated
convictions. In my view, the key factor in analyzing ripeness is whether the
remaining convictions have the “benefit of probation or parole or any other
reduction.” If they do, then the case is ripe for adjudication. If they do not, then the
case is not ripe for adjudication. Since in this case the remaining unrelated
convictions have the benefit of probation or parole, Mr. Kellam’s Rule 61 claims as
to the felony murder convictions are ripe for adjudication and I will consider them,
below.
The Grounds for Postconviction Relief
In his Amended Rule 61 Petition, Mr. Kellam states five grounds for relief:
(1) The trial court lacked jurisdiction because subsequent indictments made
material constructive changes to the charging document without presenting a
re-indictment to the grand jury and without a valid waiver;
(2) Trial Counsel was ineffective because of his failure to move for severance of
the murder charges from the other charges13 for the second time after changes
to the indictment, and appellate counsel was ineffective for failing to raise the
12
11 Del. C. § 4209(a)
13
Trial Counsel’s first motion to that effect was denied by the trial judge.
13
severance issue on direct appeal;
(3) Trial Counsel was ineffective because of his failure to move for recusal of the
trial judge with respect to the motion to sever, based on the trial judge’s prior
approval of a wiretap;
(4) Trial Counsel was ineffective because of his failure to introduce cellular data
evidence to impeach the testimony of a key State witness; and,
(5) Cumulative Error.
In his further Amended Rule 61 Petition, Mr. Kellam states one additional
ground:
(6) Trial Counsel was ineffective because of his failure to object to (a) erroneous
jury instructions regarding felony murder under Ray, and (b) the absence of a
Chance instruction on different degrees of felony murder under 11 Del. C. §
274.
In his May 17, 2023 Reply, Mr. Kellam expanded ground (6) to include the
absence of a Chance instruction under 11 Del. C. § 274 with respect to assault,
robbery, and home invasion.
Trial Counsel Affidavit, Supplemental Trial Counsel Affidavit, and Second
Supplemental Trial Counsel Affidavit
In his Trial Counsel Affidavit, Trial Counsel addressed the jurisdiction claim
and the ineffective assistance of counsel claims.
14
With respect to the argument that the trial court lacked jurisdiction because the
indictment upon which Mr. Kellam was tried was different than that indicted by the
grand jury, Trial Counsel explains how that resulted from certain groups of charges
being nolle prossed prior to trial. The indictment began with five incidents and the
trial was on only three of those incidents, including the murder. Trial Counsel
believes that this jurisdictional claim impliedly alleges that he was ineffective for
failing to move to dismiss the allegedly deficient indictment. Trial Counsel points
out that a pattern of racketeering activity is defined by statute as two or more
incidents constituting racketeering activity. As the State whittled down its case
prior to trial by jettisoning two of the five alleged incidents, Trial Counsel
considered whether the case still qualified as a racketeering case. He concluded
that it did still qualify, because three incidents remained in which the grand jury
found probable cause and indicted. Therefore, he concluded the Racketeering
counts were still valid and did not move to dismiss them.
With respect to the severance claim, Trial Counsel made a motion at trial
to sever the murder counts from the other incidents in the indictment, because he
thought grouping five incidents together, including a double homicide, was
patently unfair and made it impossible for Mr. Kellam to get a fair trial, because
jurors would find it extremely difficult to compartmentalize the evidence
15
separately as to each incident. The Court denied this motion. He did not believe
that he had a good faith basis to relitigate the motion after two of the five groups
of charges were nolle prossed. The essential problem with the motion to sever
was the Racketeering charges. Since the grand jury approved Racketeering
charges, the State had the ability to argue that all the charges needed to be tried
together so that it could prove there was an enterprise committing racketeering
activity. That argument would have prevailed even if he had relitigated the severance
motion. With respect to not raising the severance issue on appeal, as an experienced
appellate lawyer Trial Counsel did not think the severance issue had any chance of
success, for the reasons stated above. Essentially, the racketeering counts trump the
"normal" concerns associated with severance.
With respect to the recusal claim, Trial Counsel saw no reason to move to
recuse the trial judge because he had approved the wiretap warrants. The trial
judge recused himself from considering motions to suppress the wiretaps he
himself had approved. However, as discussed above, the severance motion
presented a different set of legal issues, and reflected the State's arguments
without any comment on the contents of the wiretap petition. The court's
decision on severance essentially was that, since this was a racketeering case
alleging a pattern of criminal activity, severance was not appropriate. Since Trial
16
Counsel believed the trial judge made that decision based only on consideration
of the severance motion, the State's response, and the oral argument, he saw no
basis to move to recuse the trial judge. In any event, Trial Counsel’s motion to sever
was not to sever the case into five separate trials, but to sever the double Murder
First Degree incident from the rest of the incidents to ensure a fair trial. He conceded
that the racketeering statute defeats severance of all incidents. Because that was the
issue presented, Trial Counsel had no reason to think the trial judge should have
been recused.
With respect to Trial Counsel’s failure to introduce a witness’s cellphone
records to impeach his testimony, Trial Counsel states that he made a strategic
decision not to do so for three reasons. First, he already had much impeachment
evidence with which to work, including conflicting testimony from all the
witnesses. In his view, the witnesses lied to the police, testified in exchange for
a benefit, and incriminated Mr. Kellam to protect their own interests. Second, the
courtroom dynamics reflected that the interest and engagement of the jury over the
course of a three-week trial were flagging. The introduction of cellphone records and
confrontation of them would prolong the witness’ cross-examination without much
benefit. Third, Trial Counsel thought the cellphone evidence hurt more than it
17
helped. All the witnesses were using each other’s cellphones, and who was using
which phone at what time was very murky. Moreover, the State could have
rebutted this cellphone issue on redirect examination by refreshing the witness’
recollection with his prior statements.
In his Supplemental Trial Counsel Affidavit, Trial Counsel simply states that
he failed to notice and object to the outdated language in the felony murder jury
instruction.
With respect to the lack of a § 274 Chance instruction, Trial Counsel only
addresses the lack of a § 274 Chance for the felony murder charges. He states that
he intentionally did not request a § 274 instruction for three reasons. First, this
was an “all or nothing” case. If the jury found Mr. Kellam was the "general" in
charge of the "soldiers," as the State argued, he would be found guilty of felony
murder, home invasion, assault, and robbery. Trial Counsel did not, and still
does not, think the evidence proved that Mr. Kellam was in charge. His strategy
was to point out the glaring inconsistencies in the accomplices’ testimony. They
could not even agree on how and when Mr. Kellam supposedly gave the "kill order"
for the murders. Trial Counsel also argued that every key witness in the case was
getting a deal from the State in exchange for his or her testimony. Therefore, his
strategy was to obtain not guilty verdicts. Neither he nor Mr. Kellam wanted
18
compromise, lesser-included offense verdicts. Moreover, with respect to the
murders, Trial Counsel did not view Murder Second Degree verdicts as a win for
Mr. Kellam. With all the additional charges, such verdicts would have put Mr.
Kellam in prison for life anyway.
Second, Trial Counsel did not believe there was any factual basis to request
a § 274 Chance instruction. The only lesser-included offense of felony first degree
murder is felony second degree murder. That offense requires the State to prove
the killings were conducted with a negligent mental state. There was no basis in the
evidence to argue that. These were brutal murders. The trial judge would not have
given a lesser-included instruction if there was no factual basis in the record for it.
Third, Trial Counsel strongly believed that any resort to lesser-included
offenses would have undermined his credibility with the jury. The jurors had
watched hi m impeach witnesses with prior inconsistent statements and otherwise
attempt to demonstrate that the State did not prove that Mr. Kellam was the
mastermind. It therefore made no sense for Trial Counsel to stand before the jury
and argue that if they thought the State was correct to consider negligent felony
murder or lesser offenses of the other crimes.
In his Second Supplemental Trial Counsel Affidavit, Trial Counsel addresses
Mr. Kellam’s expanded argument that a § 274 Chance jury instruction should have
19
been given, not just for the felony murder charges, but also for the robbery, assault,
and home invasion charges. Trial Counsel reiterates that he did not request a §274
instruction and the associated lesser included offenses on the non-felony murder
charges for the same three reasons stated in his first Supplemental Affidavit. First,
the trial strategy was "all-or-nothing." Mr. Kellam was charged with so many
serious offenses that convictions for lesser-included offenses would likely have
imprisoned Mr. Kellam for the rest of his life. Second, there was no factual basis
in the evidence to request a § 274 instruction and the attendant lesser-included
offenses. Third, Trial Counsel did not want to compromise his credibility with
the jury. The strategy was to convince the jury that there was reasonable doubt
that Mr. Kellam was a "general" in charge of his "soldiers." Trial Counsel did
not want to have to address lesser offenses as an alternative.
The Home Invasions were not dividable into degrees because they were based
on predicate crimes of Robbery and Assault, where mental state is not a factor. As
to the aggravating factor of a firearm, it is unreasonable to think that Mr. Kellam was
an accomplice but was not responsible for the firearms used. It makes no sense based
on the facts of the three home invasions and the accompanying crimes. Either the
jury was going to believe Mr. Kellam was the mastermind controlling the others or
they were not. Lesser included offenses made no sense in this trial.
20
Moreover, even if § 274 and lesser included instructions carried the day
on one or even two of the home invasions, and if Mr. Kellam was convicted of
lesser included offenses on the homicides, he still faced decades in prison if
convicted. There is no scenario in which the jury would have found Mr. Kellam
not guilty of some form of homicide and guilty of only lesser included offenses
of the other crimes. The positions of the state and defense were too diametrically
opposed. The jury would either adopt the State's theory or not. Based on the
evidence, Trial Counsel states that he had no factual basis to request lesser
included offenses even if he thought it was a good idea, which he did not.
Trial Counsel states that there was ample room for reasonable doubt in Mr.
Kellam's case. Every major witness testified in exchange for a deal, and every
major witness had lied to the police, usually multiple times. The strategy adopted
by Mr. Kellam was to impeach those witnesses and argue to the jury that the
“general soldier” relationship was unsupported by the evidence. Even if there
was some slight factual basis for lesser included offenses, Trial Counsel would
not have requested those instructions.
Finally, Trial Counsel addresses Postconviction Counsel’s statement that
Trial Counsel wrote a letter to Mr. Kellam stating that, "subject to change," Trial
Counsel planned to appeal the lack of an Allen instruction. Although Trial
21
Counsel did consider it, he decided against it, mainly for the reasons stated in
his two Affidavits. Moreover, he knew that the claim would have been subject
to “plain error” review, the most onerous standard. Ultimately, Trial Counsel
decided that it would make a more appropriate postconviction claim under Rule
61.
Procedural Bars
I first address the four procedural bars of Rule 61. 14 If a procedural bar exists,
as a general rule I will not address the merits of the postconviction claim. 15 A Rule
61 Motion can be barred for time limitations, successive motions, failure to raise
claims below, or former adjudication. 16
First, a motion for postconviction relief exceeds time limitations if it is filed
more than one year after the conviction becomes final.17 In this case, Mr. Kellam’s
conviction became final for purposes of Rule 61 when the Delaware Supreme Court
issued a mandate or order finally determining the case on direct review; i.e., June
13, 2019.18 Mr. Kellam filed the Pro Se Petition on August 28, 2019, well within
14
Ayers v. State, 802 A.2d 278, 281 (Del.2002) (citing Younger v. State, 580 A.2d 552, 554 (Del.
1990)).
15
Bradley v. State, 135 A.3d 748 (Del. 2016); State v. Page, 2009 WL 1141738, at*13 (Del. Super.
April 28, 2009), aff’d 994 A.2d 745 (Del. 2010).
16
Super. Ct. Crim. R. 61(i).
17
Super. Ct. Crim. R. 61(i)(1).
18
Super. Ct. Crim. R. 61(m)(2).
22
the one-year period. Consequently, the Amended Petition filed by Postconviction
Counsel o n October 15, 2021 a n d t h e f u r t h e r A m e n d e d P e t i t i o n f i l e d by
P o s t c o n v i c t i o n C o u n s e l on October 31, 2022 are also timely, even though
t h e y w e r e filed more than a year after Mr. Kellam’s convictions became final.
"Rule 61's time limit applies only to the initial filing, and ... Rule 61 grants
Superior Court judges discretion to permit defendants to amend their motions when
justice so requires." 19 Therefore, consideration of the Motion is not barred by the
one-year limitation.
Second, second or subsequent motions for postconviction relief are not
permitted unless certain conditions are satisfied. 20 Since this is Mr. Kellam’s first
petition for postconviction relief, consideration of the Motion is not barred by this
provision.
Third, grounds for relief “not asserted in the proceedings leading to the
judgment of conviction”21 or on direct appeal are procedurally barred. This procedural
bar also applies “even when ineffective assistance of counsel is asserted, unless
the defendant successfully demonstrates that counsel was in fact ineffective
19
Ploof v. State, 75 A.3d 811, 821 (Del. 2013), as corrected (Aug. 15, 2013) (citations
omitted).
20
Super. Ct. Crim. R. 61(i)(2).
21
Super. Ct. Crim. R. 61(i)(3).
23
and that ineffectiveness prejudiced his rights." 22 It is well-settled Delaware law
that, as collateral claims, ineffective assistance of counsel claims are properly raised
for the first time in postconviction proceedings.23 Most of Mr. Kellam’s claims are
grounded in ineffective assistance of counsel. Thus, those claims are not barred by
this provision.
The State argues that Mr. Kellam failed to raise his claim about the indictments
and their effect on jurisdiction claim prior to or during trial, or on direct appeal, and
it is therefore procedurally barred. To establish cause sufficient to overcome the
procedural default bar of Rule 61(i)(3)(A), Kellam must show that an external
impediment prevented him from raising the claim either at trial or on direct appeal. 24
In order to meet the second prong of Rule 6l(i)(3)(B), Kellam must demonstrate actual
prejudice resulting from the alleged and previously unasserted error. 25 Kellam has alleged
neither a cause for his default, nor prejudice therefrom. Although I understand the State’s
argument under Rule 61(i)(3), the jurisdictional issue is fundamental under the exceptions
22
Wils on v. State, 900 A.2d 102 (Table), 2006 WL 1291369, at *2 (Del. May 9, 2006)
(citing Gattis v. State, 697 A.2d 1174 (Del. 1997)).
23
State v. Schofield, 2019 WL 103862, at *2 (Del. Super. January 3, 2019); Thelemarque v. State,
2016 WL 556631, at *3 (Del. Feb. 11, 2016) (“[T]his Court will not review claims of ineffective
assistance of counsel for the first time on direct appeal.”); Watson v. State, 2013 WL 5745708, at
*2 (Del. Oct. 21, 2013) (“It is well-settled that this Court will not consider a claim of ineffective
assistance that is raised for the first time in a direct appeal.”).
24
Outten v. State, 720 A.2d 547, 556 (Del. 1998); Younger v. State, 580 A.2d at 554.
25
Younger, 580 A.2d at 555-56.
24
of Rule 61(i)(5) and I will consider it both procedurally and on the merits, below.
Fourth, grounds for relief formerly adjudicated in the case, including
“proceedings leading to the judgment of conviction, in an appeal, in a post-conviction
proceeding, or in a federal habeas corpus hearing” are barred.26 One could argue that
the severance motion claim was previously adjudicated when the Court denied Trial
Counsel’s motion to sever. However, since Mr. Kellam argues that Trial Counsel
should have made a second motion to sever, and since that claim sounds in ineffective
assistance of counsel, I will consider it on the merits, below.
Finally, none of the four procedural bars apply either to a claim that the Court
lacked jurisdiction or to a claim that pleads with particularity that new evidence exists
that creates a strong inference of actual innocence,27 or that a new retroactively
applied rule of constitutional law renders the conviction invalid.28 Mr. Kellam
attempts to overcome the Rule 61(i)(3) procedural bar (see discussion, above) by
claiming the amendments to the indictment deprived the Court of jurisdiction,
triggering the exception of Rule 61(i)(5). The State argues that this claim fails
because an indictment defect, such as is alleged here, does not deprive a court of
26
Super. Ct. Crim. R. 61(i)(4).
27
Super. Ct. Crim. R. 61(i)(5).
28
Super. Ct. Crim. R. 61(d)(2)(i) and (ii).
25
jurisdiction. 29 Although I understand the State’s argument, I am going to consider the
indictment/jurisdiction claim on the merits, below.
Legal Standard
Mr. Kellam brings one claim of lack of jurisdiction, four claims of ineffective
assistance of counsel, and a sixth claim of the cumulative effect of those errors. The
four ineffective assistance of counsel claims are assessed under the two-part standard
established in Strickland v. Washington, 30 as applied in Delaware. 31 Under
Strickland, Mr. Kellam must show that (1) Trial Counsel’s representation “fell below
an objective standard of reasonableness” (the “performance prong”); and (2) the
“deficient performance prejudiced [his] defense” (the “prejudice prong”).32 In
considering the performance prong, the United States Supreme Court was mindful
that “[S]trategic choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable.”33 Strickland requires an
objective analysis, making every effort “to eliminate the distorting effects of
hindsight” and to “indulge a strong presumption that counsel’s conduct falls within
29
See United States v. Cotton, 535 U.S. 625, 631 (2002) (holding a defective indictment does not
deprive a court of jurisdiction); Grimes v. State, 2020 WL 4200132, at *3 (Del. July 21, 2020)
(finding the Superior Court was not divested of jurisdiction by amended indictment).
30
466 U.S. 668 (1984).
31
Albury v. State, 551 A.2d 53 (Del. 1988).
32
Strickland, 466 U.S. at 687.
33
Id. at 690.
26
the wide range of reasonable professional assistance.” 34 “[S]trategic choices about
which lines of defense to pursue are owed deference commensurate with the
reasonableness of the professional judgments on which they are based.” 35
As to the performance prong, Mr. Kellam must demonstrate that Trial
Counsel’s failure to (1) move to sever at trial and to raise the severance issue on
direct appeal, (2) move for recusal of the trial Judge, (3) introduce certain cellular
data evidence, and (4) object to an erroneous felony murder jury instruction, all as
discussed more fully below, were unreasonable decisions.
As to the prejudice prong, Mr. Kellam must demonstrate that there exists a
reasonable probability that, but for Trial Counsel’s errors, the outcome of the trial
would have been different.36 Even if Trial Counsel’s performance was
professionally unreasonable, it would not warrant setting aside the judgment of
conviction if the error had no effect on the judgment. 37 A showing of prejudice
“requires more than a showing of theoretical possibility that the outcome was
affected.”38
34
Id. at 689.
35
Id. at 681.
36
Albury, at 687; Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003); Wright v. State, 671 A.2d
1353, 1356 (Del. 1996).
37
Strickland, at 691.
38
Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992).
27
Strickland teaches that there is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in a particular order, or even to address both
prongs of the inquiry if the defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant because of the alleged
deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, that course should be followed.39 In every case, the
court should be concerned with whether, despite the strong presumption of
reliability, the result of the particular proceeding is unreliable because of a
breakdown in the adversarial process that our system counts on to produce just
results.40
The Constitution does not require that the performance of Trial and
Appellate Counsel be error free to satisfy the effectiveness standard.41 The
performance inquiry turns on whether counsel's assistance was reasonable under all
the circumstances. 42 Evidence of isolated poor strategy, inexperience, or bad tactics
does not necessarily establish ineffective assistance. 43
39
Strickland, at 697.
40
Id. at 696.
41
McMann v. Richardson, 397 U.S. 759, 770-71 (1970).
42
Wong v. Belmontes, 558 U.S. 15, 17 (2009); Strickland, 466 U.S. at 688.
43
Bellmore v. State, 602 N.E. 2d 111, 123 (Ind. 1992) rehearing den. 1993.
28
Effective appellate counsel is expected to confine the appeal to presenting
those claims, which in his professional judgment, appear to be the strongest.44 "A
defendant can only show that his appellate counsel ineffectively represented him
where the attorney omits issues that are clearly stronger than those the attorney
presented." 45 To determine prejudice, the court analyzes the issue on the
merits. 46
Analysis
The Indictments and Jurisdiction
The grand jury clause of the United States Constitution 47 (the “Grand Jury
Clause”) and the Delaware Constitution 48 guarantee Mr. Kellam the right to have
his case presented to a Grand Jury before the State may proceed to trial against
him. The notice clause of the United States Constitution 49 (the “Notice Clause”)
44
Davila v. Davis, 580 U.S. 1158 (2017) ("Effective appellate counsel should not raise
every nonfrivolous argument on appeal, but rather only those arguments most likely to
succeed." (Citing Smith v. Murray, 477 U.S. 527, 536 (1986); Jones v. Barnes, 463
U.S. 745, 751-753 (1983))).
45
Ploof, 75 A.3d at 832. See Davila ("Declining to raise a claim on appeal, therefore, is not
deficient performance unless that claim was plainly stronger than those actually presented to the
appellate court.").
46
Id.
47
See U.S. Const., amend. V ("No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury.").
48
Del. Const. art. I, § 8.
49
See U.S. Const., amend. VI (“[T]he accused shall enjoy the right … to be informed of the nature
and cause of the accusation …”).
29
and the Delaware Constitution 50 guarantee Mr. Kellam’s right to be on notice of
the charges against him.
With respect to Federal law, the Grand Jury Clause prohibits constructive
amendments and prejudicial variances to an indictment. A violation of the Grand
Jury Clause can occur when the indictment is amended by the State, the Court,
or constructively in such a way that there is a substantial likelihood that the trial
jury may have convicted the defendant for an offense that is different from that
alleged in the grand jury indictment.51 "Constructive amendments and variances
are related issues that stem from the Fifth Amendment's requirement that ‘no
person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury.’” 52 “A constructive amendment
results when the terms of an indictment being, in effect, altered by the
50
Del. Const. art. I , § 7.
51
See United States v. Miller, 471 U.S. 130, 142-45 (1985) (reaffirming the idea that an
indictment is unconstitutionally amended when it is so altered as to charge a different offense from
that found by the grand jury); United States v. Daraio, 445 F.3d 253, 259-60 (3d Cir. 2006) (noting
that a constructive amendment, which federal courts have found violates the Fifth Amendment,
occurs "when, in the absence of a formal amendment, the evidence and jury instructions at trial
modify essential terms of the charged offense in such a way that there is a substantial
likelihood that the jury may have convicted the defendant for an offense differing from the offense
the indictment returned by the grand jury actually charged" (footnote omitted) (citing Miller, 471
U.S. at 140)).
52
United States v. Rios, 830 F.3d 403,427 (Ct. App. 6th Cir. July 21, 2016) reh. den. Sept. 27,
2016.
30
presentation of evidence and jury instructions which modify essential elements of
the offense charged such that there is a substantial likelihood that the defendant
may have been convicted of an offense other than the one charged in the
indictment.”53 “A variance occurs when the charging terms [of the indictment]
are unchanged, but the evidence at trial proves facts materially different from
those alleged in the indictment.”54
“There are two types of constructive amendment: first, when there is a
complex of facts presented at trial different from those set forth in the charging
instrument, and second, where the crime charged in the indictment was substantially
altered at trial so that it was impossible to know whether the Grand Jury would have
indicted for the crime actually proved.”55
With respect to Delaware law, this Court has stated:
Article I section 8 of the Constitution of the State of Delaware
prohibits the State from initiating criminal proceedings by information
when a person is arrested for an indictable offense. The Delaware
Constitution thus protects citizens from unfounded State prosecutions
by requiring the State to prove to a jury of the defendant's peers, a
Grand Jury, that the charges are justified.
At its common law roots, an indictment could only be amended by
the Grand Jury that had returned the True Bill. However, common
53
Id.54
Id.; Stirone v. United States, 361 U.S. 212 (1960).
55
United States v. Davis, 854 F.3d 601 (Ct. App. 9th Cir. Apr. 14, 2017).
31
law evolved to allow judicial amendments so long as those
amendments did not affect the substance of the indictment. Thus,
Superior Court Criminal Rule 7(e) states the court may permit an
indictment or an information to be amended at any time before
verdict or finding if no additional or different offense is charged and
if substantial rights of the defendant are not prejudiced.56
Mr. Kellam argues that, since his rights under both the Grand Jury Clause and
the Notice Clause under both Federal and Delaware law were violated, the trial court
lacked jurisdiction, and Mr. Kellam is entitled to a new trial. 57 Mr. Kellam argues
that he was tried on an indictment that was different than the one presented to the
Grand Jury. Trial proceeded without a waiver by Mr. Kellam of subsequent
indictments. Subsequent indictments in the case, which were never presented to a
Grand Jury, made material, constructive, structural changes to the charging
document and Mr. Kellam’s substantial constitutional rights were prejudiced.
The State counters that the changes to the Racketeering charge in the
Corrected Amended Indictment amount to neither an unconstitutional
constructive amendment or prejudicial variance under Federal law or an
improper substantive amendment under Delaware law. It also argues that
56
Ligon v. State, 170 A.3d 147 (Del. 2017) (TABLE).
57
Mr. Kellam appears to be claiming constitutional violations with respect to both Counts 1
and 2 of the original indictment, Criminal Racketeering and Conspiracy to Commit
Racketeering, but the State entered a nolle prosequi for the conspiracy count prior to trial.
Thus, I will only address the claim about the racketeering conviction.
32
Kellam's claims are procedurally barred under Rule 61 (see discussion, above)
and are, in any case, meritless.
The Racketeering charge required the State to prove that Mr. Kellam
participated in the affairs of an enterprise through a “pattern of racketeering
activity.” A "pattern of racketeering activity" is defined as two or more incidents
of conduct that constitute racketeering activity, are related to the affairs of the
enterprise, and are not so closely related to each other and connected in time that
government must prove that the predicates acts are related and pose a threat of
continued criminal activity. 58 This same approach to Racketeering charges is
reflected on the Federal level.59
As discussed above, in the only indictment ever presented to the Grand
Jury, the "pattern of racketeering activity" was alleged to be comprised of two or
more of five predicate events outlined in five enumerated sub-paragraphs. By the
time the case proceeded to trial, the five predicate events had been reduced to
three predicate events.
Mr. Kellam argues that he was convicted of Racketeering based upon some
combination of only three of the five predicate events submitted to the Grand Jury,
58
Lloyd v. State, 249 A.3d 768 (Del. 2021).
59
See United States v. Brandao, 539 F.3d 44, 54 (Ct. App. 1 s t Cir. 2008).
33
but it is impossible to tell if the Grand Jury would have returned a True Bill if the
original indictment only identified three, instead of five, predicate events. Because
there is no way of knowing which of the five predicate events the Grand Jury found
to exist, and because there is no way of knowing how many of the five predicate
events the Grand Jury found to exist, it follows a fortiori that there is no way o f
k n o w i n g if Mr. Kellam was convicted of the same Racketeering charge for which
he was indicted. Indeed, Mr. Kellam argues that it is substantially likely that he
was convicted of a crime for which he was not indicted. Mr. Kellam stresses that he
was not tried for any of the underlying charges that served as the basis for the
predicate offenses that were later removed.
However, the United States Supreme Court has never applied the Grand Jury
Clause to the States.60 Thus, to the extent Mr. Kellam is arguing the changes to the
Racketeering charge violated the Grand Jury Clause, his claim is not cognizable.
"[T]he legality of an amendment to an indictment is primarily a matter of state
60
See Johnson v. State, 711 A.2d 18, 23 (Del. 1998) ("The United States Supreme Court has never
held ... that the Fifth Amendment concepts of a 'grand jury' are applicable to the states by virtue
of the Fourteenth Amendment incorporation doctrine." (citing Hurtado v. California, 110 U.S.
516, 538 (1884); Alexander v. La, 405 U.S. 625, 635 (1972) (Douglas, J. concurring))); accord
Dixon v. May, 2021 WL 1226438, at *6 (D. Del. Mar. 31, 2021).
34
law." 61
Even if the Grand Jury Clause did apply in Delaware, the removal from the
Racketeering charge in the Corrected Amended Indictment of two of the five
predicate events was not an unconstitutional amendment. The United States
Supreme Court has held that "where an indictment charges ... the commission of
one offense in several ways, the withdrawal from the jury's consideration of ... one
alleged method of committing it does not constitute a forbidden amendment of the
indictment."62 In keeping with that holding, Federal courts have consistently found
that changes after indictment to Racketeering and other conspiracy charges that
remove predicate events or overt acts, or that otherwise narrow the conspiracy, do
not violate the Fifth Amendment. 63
61
United States ex. rel Wojtycha v. Hopkins, 517 F.2d 420, 425 (3d Cir. 1975), quoted in Dixon,
2021 WL 1226438, at *6; accord Dixon v. State, 2015 WL 2165387, at *2 (May 7, 2015); Mott
v. State, 9 A.3d 464,465 (Del. 2010); Johnson, 711 A.2d at 23.
62
Miller, 471 U.S. at 145 (citing Salinger v. United States, 272 U.S. 542, 548-49 (1926)). See also
id. at 140 (finding no Fifth Amendment violation when "[defendant's] complaint [wa]s not that
the indictment failed to charge the offense for which he was convicted, but that the indictment
charged more than was necessary"). Cf Turner v. United States, 396 U.S. 398, 420 (1970)
("[W]hen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive,
... the verdict stands if the evidence is sufficient with respect to any one of the acts charged.").
63
See, e.g., United States v. Hornick, 491 F. Appx 277, 286-87 (3d Cir. 2012) (finding court's
narrowing of conspiracy's time frame in jury instructions did not constructively amend
indictment); United States v. Weinstock, 1998 WL 344047, at *6 (6th Cir. May 27, 1998) ("(I]f
the evidence offered at trial proves a narrower scheme than the one alleged in the indictment, then
the variance is not fatal." (internal quotations and citations omitted)); United States v. Zauber, 857
F.2d 137, 150-51 (3d Cir. 1988) (finding no unconstitutional amendment to reduced-count
indictment because the remaining counts sufficiently alleged a racketeering conspiracy); United
35
The United States Supreme Court has held that the Notice Clause applies to
the States through the Fourteenth Amendment. 64 An amended indictment would
violate the Sixth Amendment if it did not contain all the elements of the charged
offense or fairly inform the defendant of the charge against which he must defend.65
To the extent Mr. Kellam is claiming the amendment to the racketeering
charge violated his right to fair notice, 66 this claim is unavailing. The amended
indictment contained all the necessary elements of Racketeering and fairly
informed M r . Kellam of the charge.
A Racketeering conviction requires proof of three elements: "( 1) that the
defendant was associated with an enterprise; (2) that the defendant conducted
States v. Ledbetter, 2015 WL 5117979, at *6 (S.D. Ohio Sept. 1, 2015) (noting predicate acts of
racketeering are surplusage, not essential elements of the charged conspiracy, thus, changes to
them do not support constructive amendment or variance claims). Cf United States v. Rios, 830
F.3d 403, 427 (6th Cir. 2016) (noting that the overt act element of a racketeering conspiracy charge
may be satisfied by an overt act not specified in the indictment without violating the Fifth
Amendment's prohibition on constructive amendments); United States v. Pumphrey, 831 F.2d
307, 309 (U.S. App. D.C. 1987) ("[E]xcess allegations in an indictment that do not change the
basic nature of the offense charged need not be proven and should be treated as mere surplusage.").
64
Dixon, 2021 WL 1226438, at *6 (noting that the Sixth Amendment fair notice requirement
applies to the States through the Fourteenth Amendment (citing In re Oliver, 333 U.S. 257 (1948));
accord Crawford v. Pennsylvania, 714 F. Appx 177, 179 (3d Cir. 2017).
65
See Crawford, 714 F. Appx at 179 (noting that to meet the Sixth Amendment's fair notice
requirement, an indictment must contain the elements of the offense charged and provide the
defendant with notice of the charges against which he must defend).
66
Cf Daraio, 445 F.3d at 261 ("[T]he concerns raised by a variance argument are the fairness
of the trial and the protection of the defendant's right to notice of the charges against her and her
opportunity to be heard.").
36
the enterprise through a pattern of racketeering activity ... ; and (3) that the
defendant's conduct or participation in the pattern of racketeering was
intentional." 67 The Delaware Criminal Code defines a "pattern of racketeering
activity" as "two or more incidents of conduct" that "constitute racketeering
activity," that "are related to the affairs of the enterprise," and that do not
constitute a single event (the "predicate-events"). 68 "Racketeering activity"
includes, inter alia, any activity constituting a felony under the Delaware Code. 69
To prove Racketeering, in addition to intent, the State must prove two
necessary elements: the existence of an enterprise and the presence of a pattern of
racketeering beyond a reasonable doubt. 70 Here, the indictment approved by the
grand jury alleged that Kellam "while being . . . associated with an unnamed
organization, an enterprise as defined by Title11 § 1502(3), did knowingly conduct
or participate in the conduct of the affairs of the enterprise, through a pattern of
racketeering activity," which "consisted of two or more" of five incidents of conduct
(the predicate events). The Corrected Amended Indictment submitted to the jury at
trial contained the same language, but only listed three predicate events.
67
White v. State, 243 A.3d 381,398 (Del. 2020) (citing 11 Del. C. § 1503).
68
11 Del. C. § 1502(5)a.
69
11 Del. C. § 1502(9)b
70
Stroik v. State, 671 A.2d 1335, 1340 (Del. 1996).
37
The fact that the version of the indictment submitted to the jury contained
fewer predicate offenses does not amount to a Sixth Amendment violation. The
original indictment and the amended indictments each alleged all the necessary
elements. And, even though the State dropped two of the predicate events from the
indictment submitted to the jury, both indictments clearly put Mr. Kellam on notice
that he was going to have to defend himself against the Racketeering charge, which
always included as predicate events the charges of which he was convicted. 71 A
defendant cannot show his substantial rights were prejudiced by the absence of
charges alleged against him in an original indictment.72 Moreover, "[t]he listing of
multiple means of committing a statutory offense is a recognized and accepted
practice."73 Accordingly, Mr. Kellam cannot show that the removal of two of the
71
See United States v. Schoenhut, 576 F.2d 1010, 1021-22 (3d Cir. 1978) ("A variance does
not prejudice a defendant's substantial rights ... if the indictment sufficiently informs the defendant
of the charges against him so that he may prepare his defense and not be misled or surprised at
trial." quoted in Daraio, 445 F.3d at 262).
72
See Miller, 471 U.S. at 134-35 (finding no notice-related violation concerns from government's
removal of part of indictment that alleged prior knowledge of burglary, noting "there can be
no showing here that Miller was prejudicially surprised at trial by the absence of proof concerning
his alleged complicity in the burglary"); Zauber, 857 A.2d at 151 (finding no Sixth Amendment
violation when RICO case was tried on a 90-count indictment, which, by the time of trial had been
reduced to six counts).
73
Richardson v. State, 673 A.2d 144, 146 (Del. 1996) (citing Griffin v. United States, 502 U.S.
46, 51 (1991)). Cf United States v. Conley, 92 F.3d 157, 163 (3d Cir. 1996) ("It is clear that
when a jury returns a general verdict of guilty on a multi­ object conspiracy count, the
conviction will stand over Fifth Amendment due process objections so long as there is
sufficient evidence to support any one of the objects of the conspiracy." citing Griffin, 502
U.S. at 56-57)).
38
listed predicate events from the racketeering charge violated the Sixth Amendment.
Finally, the amended indictments do not violate Delaware law. Superior
Court Criminal Rule 7(e) permits amendment of an indictment "at any time before
verdict or finding if no additional or different offense is charged and if substantial
rights of the defendant are not prejudiced." The purpose of the rule is to give a
defendant: (1) notice of the charges against him so that he can prepare an adequate
defense; and (2) protection from double jeopardy.74 "[T]he principal test for
determining the appropriateness of an amendment under the Delaware
Constitution [focuses] on the extent to which the amendment substantively changes
the material elements of the crime alleged in the original indictment." 75 Thus, a
judge may amend an indictment as to matters of form, but not as to matters of
substance "as long as ' ... no new, additional or different charge is made thereby and
the accused will not otherwise suffer prejudice as to substantial rights."'76
Additionally, it is generally accepted that a court may permit amendment of the
indictment to charge a defendant with a lesser-included offense to an original
charge.77
74
Tingle v. State, 815 A.2d 349 (Del. 2003); accord Keller v. State, 425 A.2d 152, 155 (Del.
1981).
75
Coffield v. State, 794 A.2d 588, 592 (Del. 2002).
76
Keller, 425 A.2d at 155 (quoting State v. Blendt, 120 A.2d 321, 324 (Del. Super. 1956)).
77
See State v. Grossberg, 1998 WL 278391, at *1 (Del. Super. Ct. Apr. 13, 1998) ("Because a
39
This Court did not err in permitting the State to amend the indictment to
remove two of the five predicate events for Racketeering. The amendment did not
change the material elements of the charge, especially given that Delaware law
permits an indictment to list alternative means with respect to an element of a
crime.78 Moreover, as discussed above, the original indictment already placed Mr.
Kellam on notice that he would have to defend against the three remaining predicate
events, thus sufficiently enabling him to prepare a defense. 79 Mr. Kellam cannot
show the amendment violated Delaware law.80
I deny this claim.
lesser included offense is, by definition, composed exclusively of some, but not all, of the elements
of the offense charged, it would never constitute a 'different' offense, and seldom an 'additional'
offense within the meaning of Rule 7(e)." (quoting Virgin Islands v. Bedford, 671 F.2d 758, 765
(3rd Cir. 1982))); accord Rogers v. State, 2003 WL 22957024, at *2 (Del. Dec. 12, 2003) (finding
Superior Court properly exercised discretion in permitting State to amend indictment to charge
defendant with lesser-included offense of original charge).
78
See Richardson, 673 A.2d at 147 ("It was a historical practice and continues to remain a common
practice to list in one count of an indictment alternative means with respect to an element of a
crime.").
79
Cf Norwood v. State, 813 A.2d 1141 (Del. 2003) ("If the original indictment, when viewed
with the amendment, is sufficiently certain and understandable to enable the defendant to
prepare his defense, the defendant will not be prejudiced.").
80
Cf. Metelus v. State, 2018 WL 6523215, at *3 (Del. Dec. 10, 2018) (finding no abuse of
discretion in allowing indictment to be amended when defendant did not argue that the amended
indictment charged an additional or different offense or that her defense would have differed).
40
Ineffective Assistance of Counsel
Severance
Although Postconviction Counsel disclaims an attempt to relitigate the
Motion to Sever made by Trial Counsel at trial, he incorporates the Motion to
Sever, the Reply to Motion to Sever, and oral argument on the Motion to Sever
by reference in his argument. Mr. Kellam asserts that Trial Counsel was
ineffective fo r failure to move for severance a second time after the changes the
to the indictment resulting in fewer charges going to the jury.
To establish prejudice based upon an attorney's failure to seek severance,
Petitioner must show that a motion to sever would have been granted and that if the
charges had been tried separately the result would have been different. Prejudice
occurs if there is a reasonable probability that, but for counsel's deficient
performance, the outcome would have been different. A reasonable probability is
probability enough to undermine the outcome. 81
Under Superior Court Criminal Rule 8, a defendant may be indicted for
two or more offenses if the offenses are of the same or similar character or are
based on the same act or transaction or on two or more acts or transactions
81
State v. Woods, 2008 Wash. App. (Wash. Ct. App. May 12, 2008).
41
connected together or constituting parts of a common scheme or plan.
"The United States Supreme Court held that, when addressing the Federal 1
RICO statute, to prove a pattern of racketeering activity, the government must
show that the predicate acts are related to the enterprise and they amount to or
pose a threat of continued criminal activity." "Relatedness exists if the
racketeering acts 'have the same or similar purposes, results, participants, victims,
or other methods of commission, or otherwise are interrelated by distinguishing
characteristics and are not isolated events."' 82
Under Superior Court Criminal Rule 14, the Superior Court may grant a
motion for severance for separate trials if it appears that a defendant or the state is
prejudiced by a joinder of offenses … in an indictment.83 Delaware Courts have
identified prejudice arising from joinder where: (1) the jury may accumulate the
evidence of the various crimes charged and find guilt when, if considered
separately, it would not so find; (2) the jury may use the evidence of one of the
crimes to infer a general criminal disposition of the defendant in order to find
guilt of the other crime or crimes; and (3) the defendant may be subject to
82
Lloyd v. State, 249 A.3d 768 (Del. 2021) (citing H.J. Inc. v. Northwestern Bell
Telephone Company, 492 U.S. 229 (1989)).
83
Lloyd v. State, 249 A.3d 768 (Del. 2021 ). See also Bates v. State, 386 A.2d 1139(Del. 1978).
42
embarrassment or confusion if there is any different and separate defenses to the
different charges.84
Mr. Kellam argues that, although the trial court should have granted the
motion to sever in the first instance, it would have granted the motion to sever
after the indictment was changed so critically. At oral argument, Trial Counsel
argued that the murder charges should be tried separately from the remaining
charges in what was at the time an 81-count indictment. Trial counsel argued that
the jury could not reasonably be expected to compartmentalize the evidence. In
his view, it was impossible for the jury to hear evidence of multiple home
invasions and not impute guilt upon the separate and distinct homicides.
The trial court denied the motion when it was made, noting that Mr. Kellam
was charged with Racketeering, and that the State alleged he was the ringleader.
All the incidents together established that Mr. Kellam was the leader and that the
others were following his direction. Moreover, the Court pointed out, as part of the
Racketeering charge, the State was alleging a pattern of criminal activity.
Mr. Kellam argues that the trial court's analysis would have been different
once Counts 27 - 40 and Counts 41 - 46 were removed from the indictment. In
84
State v. McKay, 382 A.2d 260 (Del. Super. 1978).
43
those counts, the State alleged conduct related to the home invasions of Isiah
Phillips on May 18, 2014 and Ashley Moore on August 22, 2014. When they
were removed, only three home invasion events remained in the indictment. And
in only one of any of those events was someone killed. Indeed, in its closing
argument, the State attributed an unrelated motive to the murders than to the other
home invasions: retaliation for a fight that preceded the killings involving a man
named John Snead. Mr. Kellam argues that the application of the Getz v. State85
factors would have weighed against admissibility of prior bad acts evidence and
severance would have been granted.
Additionally, Mr. Kellam argues that appellate counsel was ineffective by
failing to raise the severance issue on direct appeal to the Delaware Supreme Court.
The Delaware Supreme Court has held that the same Strickland test applies to
claims of ineffective assistance of appellate counsel. 86 Petitioner must first show
that counsel was objectively unreasonable in failing to raise the issue of severance
on appeal. While the United States Supreme Court has recognized that appellate
counsel need not raise every non-frivolous claim on appeal (encouraging
litigants to select strong issues), it is possible to bring a Strickland claim based
85
538 A.2d 726 (Del. 1988).
86
Neal v. State, 80 A.3d 935 (Del. 2013)(citing Smith v. Robbins, 528 U.S. 259 (2000)).
44
on counsel's failure to raise a particular claim on appeal. Where an allegedly
ineffective counsel files a merits brief on appeal, the Petitioner on Rule 61 bears
the burden of showing that a particular non-frivolous issue was clearly stronger
than issues that counsel did present. Citing Neal, the Delaware Superior Court
has applied the Strickland test to claims of ineffective assistance of appellate
counsel brought before it in the context of a Rule 61 Motion for Postconviction
Relief. 87
Mr. Kellam argues that severance was a strong issue on appeal. As argued
to the trial court in the motion to sever, none of the home invasion victims
identified Petitioner as the perpetrator, Petitioner was not arrested during the
commission of any of these crimes, there was no confession, there were no
forensics, and the evidence of Petitioner's guilt came from alleged co-
conspirators testifying for favorable treatment.
Appellate counsel pursued only one issue on appeal: the denial of a motion
to exclude recorded wiretap statements allegedly made by Mr. Kellam (see
discussion, below). Appellate counsel argued that statements should have been
excluded pursuant to Delaware Rule of Evidence 404(b). Challenges to a trial
87
State v. Hunter, 2018 WL 2085006 (Del. Super. Apr. 25, 2018).
45
court's evidentiary rulings are only required to meet an abuse of discretion
standard. 88 Thus, that appeal was a long shot at best, argues Mr. Kellam, and
the severance motion was a stronger issue on appeal.
Had the issue of severance been pursued on appeal, Mr. Kellam believes it
might well have been granted. On appeal, the Delaware Supreme Court will
reverse the denial of a motion to sever when the defendant demonstrates a
reasonable probability that the joint trial caused substantial injustice. 89 Clearly,
Mr. Kellam argues, substantial injustice occurred here. Petitioner was convicted
on all counts of a sprawling indictment in which a multitude of offenses were
joined together under the guise of a “pattern of racketeering activity” in a
defective indictment. As argued in the trial court and perfected for appeal, Mr.
Kellam argues here that severance was entirely appropriate in this case.
The State counters that all the incidents were correctly tried together because
Mr. Kellam and his codefendants were involved in organized crime; their business
was to commit home invasions of suspected drug dealers to rob them of money and
drugs. In committing those home invasions, including the one that led to the two
deaths, the defendants engaged in a common scheme: Mr. Kellam would find a
88
Zebroski v. State, 715 A.2d 75 (Del. 1998).
89
Lloyd v. State, 249 A.3d 768 (Del 2021).
46
dealer and his location, direct others where to go, and provide them with guns. Mr.
Kellam’s assessment of the severance issue fails for one important reason:
severance was not appropriate because all the counts stemmed from incidents
related to the Racketeering charge. Indeed, in his Trial Counsel Affidavit, Trial
Counsel acknowledges that he had no good faith basis to raise the severance issue
because the Racketeering charge gave the State the ability to argue that all the
charges needed to be tried together in order to prove there was an enterprise
committing racketeering activity.
Here, all the charges stemming from the five (later, three) home invasions,
including the homicide charges, were part and parcel of the predicate events for
the Racketeering charge. Those events were integral to proving racketeering. Thus,
the charges stemming from each of the home invasions, including the homicide
charges, were inextricably intertwined with the Racketeering charge. "[W]hen an
offense charged in an indictment is inextricably intertwined with predicate
offenses, the charges should remain joined."90 In Taylor v. State, for example, the
Delaware Supreme Court found that the Superior Court had not abused its discretion
90
State v. Mack, 2021 WL 4848230, at *12 (Del. Super. Ct. Oct. 18, 2021) (citing Taylor v.
State, 76 A.3d 791,801 (Del. 2013)).
47
for refusing to sever a gang participation charge from murder, attempted murder, and
additional felony charges. 91 The Court held that, because the evidence supporting
the charges was inextricably intertwined, it would have been admissible even if the
charges had been severed, and "the trial court acted well within its discretion in
denying severance."92
Whether Mr. Kellam raised the issue again prior to trial, after the State
dropped charges stemming from two of the predicate events from the indictment, or
on appeal, he needed to demonstrate that the predicate events were not related to
the criminal racketeering enterprise.93 He did not make that argument in his
motion to sever, nor does he appear to make a viable argument to that effect in
his postconviction motion. "Relatedness exists if the racketeering acts 'have the
same or similar purposes, results, participants, victims, or other methods of
commission, or otherwise are interrelated by distinguishing characteristics and
91
Taylor, 76 A.3d at 801.
92
Id. See also Phillips v. State, 154 A.3d 1146, 1159 (Del. 2017) (finding trial court did not abuse
its discretion in denying motion to sever charges related to homicides from gang participation-
related charges because the evidence in the indictment supporting the charges was inextricably
intertwined).
93
See Mack, 2021 WL 4848230, at *1 (noting that when a racketeering charge is involved,
predicate offenses are properly joined at trial if they have a "sufficient nexus" to the racketeering
charge (citing Lloyd v. State, 249 A.3d 768, 776-77 (Del. 2021)).
48
are not isolated events."' 94
Mr. Kellam argues severance was appropriate because the evidence did not
tie him to the crimes. He also seems to assert that the homicides were not part of a
pattern of racketeering evidence 95 because the other two home invasions did not
result in homicides, and the primary motive for the homicides was revenge, not
robbery, as it had been for the other home invasions. But Mr. Kellam's arguments
ignore the fact that the indicted charges stemming from the three predicate events
that were submitted to the jury at trial were sufficiently related to the Racketeering
charge to make joinder of all the charges appropriate. And his assertion that none of
the evidence connected him to the crimes is belied by the record and, in any case,
arguments about weight to be given the evidence and credibility of the State's
witnesses are not relevant to assessing whether there was misjoinder of charges.96
The State alleged and presented evidence that each home invasion involved
Mr. Kellam; that Mr. Kellam and others would rob drug dealers; and that Mr. Kellam
94
Lloyd, 249 A.3d at 776-77 (quoting H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 240
(1989)).
95
See Lloyd, 249 A.3d at 776 ("[T]o prove a pattern of racketeering activity, the government must
show that the predicate acts are related to the enterprise and they amount to or pose a threat of
continued criminal activity.").
96
See Poon v. State, 880 A.2d 236, 238 (Del. 2005) ("[I]t is the sole province of the fact finder to
determine witness credibility, resolve conflicts in testimony and draw any inferences from the
proven facts."); Mack, 2021 WL 4848230, at *12 (noting that Mack's factual issue about whether
the charges should be considered a pattern of racketeering activity was a jury decision).
49
supplied the guns and told the others who their target was and showed or told them
where to go. In addition, even though Mr. Kellam and the others might have wanted
retribution for the fight with Snead, they also chose to, and did, rob the victim
because he was a drug dealer. Importantly, others also shot at and wounded a victim
when they tried to rob him. Just because they happened to kill two victims during
the course of a home invasion and robbery does not mean that the event was not
related to their criminal enterprise. A renewed motion to sever those charges, or
an appeal of the denied motion, was not going to be successful.97 And neither Trial
Counsel nor Appellate Counsel were ineffective for failing to raise the issue again.98
I deny this claim.
97
See Mack, 2021 WL 4848230, at *11 (denying defendant's request to sever racketeering case
into 39 separate trials when charges met the definition for relatedness, "namely, they [had] similar
purposes, results, participants, and methods of commission," and recognizing the State's right to
meet its burden of proving a pattern of racketeering activity). See also United States v. Irizarry,
341 F.3d 273, 290 (3d Cir. 2003) (holding that when all of the criminal conduct charged
against the defendant constituted a series of related acts in furtherance of a commonly charged
RICO enterprise, there was no misjoinder of separate, unrelated offenses); United States v.
Eufrasio, 935 F.2d 553, 570 (3d Cir. 1991) (finding district court did not err in refusing to
dismiss murder conspiracy charge that was a racketeering predicate; noting "[t]he government had
the right to charge and prove every element constituting the RICO charges against [the defendant],
... even if proof of it revealed unsavory aspects of [his] criminal past to the jury").
98
Cf Skinner v. State, 607 A.2d 1170, 1173 (Del.1992) (holding that decision that claim based on
underlying substantive issue would not have succeeded precluded a showing of prejudice on claim
of ineffective assistance of counsel regarding issue); Shelton v. State, 744 A.2d 465, 503 n.183
(Del. 2000) ("[T]he Sixth Amendment does not require counsel to pursue meritless arguments
before a court.").
50
Recusal from Severance Motion
Mr. Kellam filed a Motion to Suppress challenging the validity of a search
warrant to intercept telephone communications. Because the trial court judge
had signed the ex parte wiretap warrant, he recused himself from deciding the
Motion to Suppress and the Motion was decided by a visiting judge. Mr. Kellam
argued that the signing of a warrant based upon probable cause could show a
disposition by the Court which would preclude the Court from fairly deciding
that issue anew, either on the Motion or during trial.
Now Mr. Kellam argues that Trial Counsel was ineffective for failing to
request the trial judge to recuse himself from considering his Motion to Sever.
Mr. Kellam further argues that he was denied a fair trial because the trial court
judge did not sua sponte recuse himself from hearing the Motion to Sever.
The Delaware Judge's Code of Judicial Conduct states that a judge should
disqualify himself or herself in a proceeding in which the judge's impartiality
might reasonably be questioned including but not limited to where the judge has
personal knowledge of disputed evidentiary facts concerning the proceeding. 99
The Court considers "whether, as a matter of subjective belief, the judge was
99
Delaware Judges Code of Judicial Conduct Rule 2.11.
51
satisfied that he or she could proceed to hear the case free of bias or prejudice
concerning a party." 100
Mr. Kellam argues that when the trial judge signed the ex parte wiretap
search warrant, which caused his recusal from considering the Motion to
Suppress, the trial judge also tainted his ability to fairly consider the Motion to
Sever. The facts that the trial judge learned in signing the warrant were relied
upon by the State and the trial judge in denying the Motion to Sever. Mr. Kellam
is offended that in such a serious case, the trial judge did not issue a written
opinion on the Severance Motion. The trial judge denied the motion from the
bench and marked "denied" on a judicial action form. From the bench, the trial
judge stated that this was a Racketeering case where the State alleged a pattern of
criminal activity.
Mr. Kellam argues that the trial judge's comments reflected the contents
of the application and affidavit supporting the interception of wire
communications which had been presented to the trial judge previously when the
ex parte wiretap was authorized. Indeed, the State referenced the wiretap
application and affidavit in its response to the trial judge. Mr. Kellam claims that this
Franklin v. State, 901 A.2d 119 (Del. 2006) (on appeal from the Superior Court in State v.
100
Franklin, 2005 WL 3193713 (Del. Super. Nov. 29, 2005)).
52
must have been heard favorably by a trial judge who had previously reviewed and
approved the wiretap application and affidavit.
The State argues that Mr. Kellam’s argument is based on the incorrect
premise that a judge who signs a warrant must later recuse himself from matters
affected by his finding of probable cause for the warrant. "Due process guarantees
'an absence of actual bias' on the part of a judge."101 To determine whether actual
bias is present, the United States Supreme Court has applied an objective
standard. 102 "Recusal is required when, objectively speaking, 'the probability
of actual bias on the part of the judge or decisionmaker is too high to be
constitutionally tolerable.’" 103 The Supreme Court has also recognized, however,
that the Due Process Clause of the Fourteenth Amendment establishes a
constitutional floor, and that "most questions concerning a judge's qualifications
to hear a case are not constitutional ones," 104 and are instead answered by state
statute, common law, and professional standards. 105 T he Court has never held
101 Williams v. Pennsylvania, 579 U.S. 1, 8 (2016) (quoting In re Murchison, 349 U.S. 133, 136
(1955)).
102
Id.103
Rippo v. Baker, 137 S. Ct. 905,907 (2017) (quoting Withrow v. Larkin, 421 U.S. 35, 47
(1975).
104
Bracy v. Gramley, 520 U.S. 899, 904 (1997) (citing Aetna Life Ins. Co. v. Lavoie,
475 U.S. 813, 828 (1986)).
105
Id.53
that due process requires a judge to recuse himself from presiding over a criminal
trial after finding there was probable cause to issue a warrant in the case. 106
Indeed, in Withrow v. Larkin, the United States Supreme Court noted:
Judges repeatedly issue arrest warrants on the basis that
there is probable cause to believe that a crime has been
committed and that the person named in the warrant has
committed it. Judges also preside at preliminary hearings
where they must decide whether the evidence is sufficient
to hold a defendant for trial. Neither of these pretrial
involvements has been thought to raise any
constitutional barrier against the judge's presiding over
the criminal trial and, if the trial is without a jury, against
making the necessary determination of guilt or innocence.
. . . We should also remember that it is not contrary to
due process to allow judges and administrators who have
had their initial decisions reversed on appeal to confront
and decide the same questions a second time around.107
Mr. Kellam has not alleged any personal interest or bias on the part of the
judge, only that the judge should not have decided the motion to sever because he
found probable cause to issue the wiretap warrant and assigned a visiting judge to
decide the motion to suppress the warrant. On that basis, Kellam has not established
a due process violation.
106
See Powell v. Link, 2017 WL 7795393, at *6-7 (E.D. Pa. Nov. 16, 2017) (noting due process
does not raise any constitutional barrier against judge's presiding over criminal trial after issuing
arrest warrants (citation omitted)), rep.and recommendation adopted, 2018 WL 1071926 (E.D.
Pa. Feb. 27, 2018), cert. of appealability denied, Powell v. Superintendent Graterford SCI,'.W
18 WL 11028198 at *l (3d Cir. Oct. 29, 2018).
107
421 U.S. 35, 56-57 (1975).
54
Nor can Mr. Kellam show the judge's recusal was warranted under State law.
With respect to the Delaware Judges' Code of Judicial Conduct Rule 2.11, the
Delaware Supreme Court has held that "the bias envisioned by [the Code of
Conduct] is not created merely because the trial judge has learned facts or made
adverse rulings during the course of a trial." 108 Moreover, "[t]o serve as a
disqualifying factor, the alleged bias ... 'must stem from an extrajudicial source and
result in an opinion on the merits on some basis other than what the judge learned
from his participation in the case."' 109
Typically, when a motion to recuse is filed, a judge must undertake a two-step
analysis: (1) "[t]he first step requires the judge to be subjectively satisfied that he or
she can proceed to hear the cause free of bias or prejudice," and (2) "the second step
requires the judge to examine objectively whether the circumstances require recusal
because of an appearance of bias sufficient to cause doubt as to the judge's
impartiality."110 As noted above, Mr. Kellam cannot show objective bias merely
108
Weber v. State, 547 A.3d 948, 952 (Del. 1988) (citing Steigler v. State, 277 A.2d 662, 668
(Del. 1971)).
109
Jackson v. State, 684 A.2d 745, 753 (Del. 1996) (quoting Los v. Los, 595 A.2d 381,384
(1991) (citing U.S. v. Grinnell Corp., 384 U.S. 563 (1966))).
110
Gattis v. State, 955 A.2d 1276, 1285 (Del. 2008).
55
because the judge learned facts about the case from the wiretap warrant. 111 H e
has presented no evidence to support a claim that the judge was subjectively biased
against him. Thus, the trial judge did not err in failing to sua sponte recuse himself
from deciding the severance motion, a motion to recuse the judge would not have
been successful, and trial counsel was not ineffective for failing to have filed such a
motion.112
I deny this claim.
Cellular Data Evidence
One strategy of the defense at trial was to highlight inconsistencies in the
witnesses' testimony to the jury. In closing argument, Trial Counsel argued that the
witnesses were inconsistent, contradictory, and at times outright untruthful. He
111
See Steigler, 277 A.2d at 668 ("[T]be mere fact that a Judge has made some pretrial rulings
against a given defendant is not in itself sufficient to require his disqualification."), quoted
in Gattis, 955 A.2d at 1284; Jackson, 684 A.2d at 753 (“To require a judge to disqualify
himself or herself from further participation in a case where the judge acts as a gatekeeper for
the admissibility of evidence would impose an unreasonable and totally impracticable
standard."). See also Liteky v. United States, 510 U.S. 540, 555-56 (1994) ("[O)pinions formed
by the judge on the basis of facts introduced or events occurring in the course of the
current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality
motion unless they display a deep-seated favoritism or antagonism that would make fair judgment
impossible.").
112
See Hurst v. State, 2013 WL 85109) at *2 (Del. Jan. 7, 2013) (finding no plain error for judge
not to sua sponte recuse himself from presiding over the trial simply because he approved the
search warrant application); Powell, 2017 WL 7795393, at *6-7 (finding that alleging no
personal interest by the judge beyond "a general disinclination to overturn his own ruling'' was
inadequate to state a constitutional violation as a matter of law); Skinner, 607 A.2d at 1173;
Shelton, 744 A.2d at 503 n.183.
56
argued that the witnesses testified to save themselves in exchange for plea deals offered
to them by the State. Trial Counsel also argued the lack of corroboration of the
witnesses’ testimony. The State acknowledged that the witnesses' testimony was
inconsistent on when and by whom the order to kill the murder victims was
given.
Mr. Kellam now argues that it was ineffective of Trial Counsel to fail to
introduce contradictory cell phone data evidence challenging this testimony.
Discovery materials provided to Trial Counsel by the State in advance of trial
included an AT&T Phone Mobility Usage Report for one of the key witnesses,
which arguably showed no communication between that witness and Mr. Kellam
regarding the kill order. Mr. Kellam argues that Trial Counsel should have called
an expert witness to testify that there was no such communication. Failure to
present this Report to contradict the testimony about the kill order, according to
Mr. Kellam, fell below an objective standard of reasonableness and, had the
evidence been presented, the outcome of trial would likely have been different
under the Strickland test.
This case was a battle of witness credibility. The witnesses provided different
renditions of facts related to the one thing that was not corroborated in the murders:
Mr. Kellam's involvement. Mr. Kellam argues that this evidence, which would have
57
contradicted the kill order testimony, should have been shown to the jury, and that
without the kill order testimony, the jury would not have convicted Mr. Kellam of
murder.
In his Trial Counsel Affidavit, Trial Counsel asserts that he had three strategic
reasons not to introduce the evidence from the cellphone records: (1) he had
plenty of other impeachment evidence to work with; (2) he felt the jury's interest
was flagging and he believed that confronting a witness about those records would
prolong an already long cross- examination without much benefit; and (3) he
thought the cellphone evidence would hurt more than it helped because people,
including Kellam, had been using other people's phones, and "the State would
have easily been able to rebut this phone issue on redirect by refreshing [the
witness’] recollection with his prior statements."
The State argues that Mr. Kellam can show neither that Trial Counsel's
decision was objectively unreasonable, nor that he was prejudiced thereby. First,
Mr. Kellam was convicted as an accomplice of two counts of first-degree felony
murder. Thus, it did not matter whether the State could prove that Mr. Kellam
gave the kill order; it was sufficient for the State to show that he acted as an
accomplice to the others in committing the home invasion that resulted in the
two deaths. The State argues that it presented significant evidence that that was
58
the case. Multiple witnesses testified that, among other things, Mr. Kellam
provided the guns, ordered the robbery, and instructed where it was to occur. Apart
from the "kill order" evidence, the State presented a strong case that Mr. Kellam
aided, counseled, or agreed to aid the others in the commission of the home
invasion, which foreseeably resulted in the two murders.113
Second, Trial Counsel’s reasons for not introducing the evidence were
strategic, and not objectively unreasonable. Trial Counsel is correct that he had
sufficient other impeachment evidence, and he correctly recognized that the phone
call impeachment evidence was not going to make a difference in the case.
I agree with the State that Trial Counsel’s reasons for not introducing this
evidence were strategic and not objectively unreasonable. Trial counsel was not
ineffective for failing to introduce the cellphone evidence.
I deny this claim.
113
See Hassan-El v. State, 911 A.2d 385, 394-95 (Del. 2006) ("[I]f the ‘accomplice' intended
to commit the underlying felony, i.e., armed robbery, then he or she is also guilty of any
'consequential crime' that is committed, i.e., murder, as long as the consequential crime was a
'foreseeable consequence' of the armed robbery… (citing Claudio v. State, 585 A.2d 1278,
1281-82 (Del.1991); Hooks v. State, 416 A.2d 189, 197 (Del. 1980)); 11 Del. C. § 271
(providing a person is liable for the conduct of another when "intending to promote or facilitate
the commission of the offense the person ... aids, counsels or agrees or attempts to aid the other
person in planning or committing it"); A1431-33 (accomplice liability jury instruction).
59
Felony Murder Jury Instruction
Mr. Kellam next argues that Trial Counsel was ineffective by failing to object
to the felony murder instruction given to the jury. The trial judge erroneously defined
felony murder for the jury when he said: "in order to find the defendant guilty of
murder in the first degree, you must find... the person's death occurred in the course
of or in furtherance of the defendant's commission of a felony.”114 The "in
furtherance of” language applied by the trial court was from a pre-2004 version of
the statute. However, when Mr. Kellam went to trial, the felony murder statute had
been revised to omit the “in furtherance of” language. The felony murder statute
now reads: "a person is guilty of murder in the first degree when ... while
engaged in the commission of, or attempt to commit, or flight after committing
or attempting to commit any felony, the person recklessly causes the death of
another person." 115
In 2003, under the old “in furtherance of” language, the Delaware
Supreme Court held that “the felony murder statute 'not only requires that the murder
occur during the course of the felony but also that the murder occur to facilitate
114
The felony murder jury instruction language was repeated four times; in one instance it was
incorrect and in three instances it was correct. This is of no consequence to me; the jury could have
decided on the wrong language.
115
11 Del. C. § 636.
60
commission of the felony."' 116 In direct response to that case, the General Assembly
amended the felony murder statute in 2004 to remove the language that the Supreme
Court had interpreted as requiring the murder to have been committed to facilitate
the commission of the underlying felony.117
Mr. Kellam asserts that Trial Counsel’s failure to object to the erroneous
jury instruction at trial constitutes ineffective assistance of counsel under
Strickland. "The reasonableness of counsel's challenged conduct must be judged
on the facts of the particular case. A determination that defense counsel's
conduct was 'the result of reasonable professional judgment' or 'within the wide
range of professional competent assistant' will defeat an ineffective assistance
claim." 118 "A lawyer's decision to refrain from objecting to a faulty jury
instruction or requesting a clarifying one can be perfectly reasonable if it is the
product of reasonable professional judgment and strategic considerations." 119
The Delaware Supreme Court has said that "in evaluating the propriety of
a jury charge, the jury instructions must be viewed as a whole. A jury instruction
116
Chao v. State, 931 A.2d 1000, 1000 (Del. 2007) (citing State v. Williams, 818 A.2d 906,
913 (Del. 2003, amending 2002 decision).
117
Comer v. State, 977 A.2d 334, 338 (Del. 2009) (quoting 11 Del. C. § 636(a)(2)).
118
Ray v. State, 280 A.3d 627 (Del. 2022).
119
Id.61
is not a ground for reversal if 'it is reasonably informative, not misleading and
does not undermine the jury's ability to intelligently perform its duty. Although a
party is not entitled to a particular jury instruction, a party does have the
unqualified right to have the jury instructed with a correct statement of the
substance of the law. An instruction which tracks the statutory language is
adequate to inform the jury."120
In Ray v. State, a recent Delaware Supreme Court decision, the Court held
that use of an erroneous felony-murder instruction that did not accurately state
the law, which counsel failed to object to or raise on appeal, merited
postconviction relief. 121 The facts of the Ray and Kellam cases are parallel in
several ways. Mr. Ray was convicted of felony murder, receiving a life sentence
plus twenty years. 122 Mr. Kellam was also convicted of felony murder and
received multiple life sentences. Mr. Ray directly appealed his conviction and
the denial of his first postconviction motion. 123 Mr. Ray's second appeal argued
an ineffective assistance of counsel claim on the grounds that his trial and
appellate counsel overlooked the fact that the felony murder jury instruction was
120
Lloyd v. State, 152 A.3d 1266 (Del. 2016).
121
Ray v. State, 280 A.3d at *3.
122
Id. at *2.
123
Id.
62
"obviously flawed" and did not accurately reflect the current law. 124 Mr. Kellam
raises a nearly identical claim here. The Ray jury instruction that was given at the
close of the trial included outdated felony murder elements requiring that the
murders occurred "in furtherance of the commission or attempted commission
of any felony." 125 This is precisely the same language, reflective of the outdated
statute and not the current statute, that was incorporated into Mr. Kellam's jury
instructions.
The Supreme Court in Ray identified the defining issue as whether it would
have reversed the conviction on direct appeal had it been apprised of the fact that
it
rested on a jury instruction that, in addition to being outdated and
incorrect, referred to potential accomplice liability without
defining that concept. The instruction also improperly cleared a
new path to a finding that Ray was guilty of first-degree murder.
... [T]he instruction told the jury that Ray could be held
responsible for first-degree felony murder even upon a finding
that he had not caused [the victim’s] death if it determined that
his “accomplice” had done so.126
124
Id. at *4.
125
Id. at *15.
126
Ray, 280 A.3d at 644-45.
63
Mr. Kellam argues that the language "in furtherance of" in the felony murder jury
instruction served to further emphasize his guilt by association with his
accomplices, and it strengthened the idea that he could be held responsible for the
crimes of his accomplices. This misdirection was not tempered by a § 274
instruction (see discussion, below).
The State argues that the Ray is distinguishable from Kellam on the jury
instruction issue. The Ray jury received an erroneous felony murder instruction
but no accomplice liability instructions, neither the § 271 accomplice liability
instruction nor the § 274 Chance instruction. In Ray, using the language "in
furtherance of" thus introduced a theory of accomplice liability that the State did
not argue or present evidence for. The Superior Court had denied the State's request
for an accomplice liability instruction under § 271 as lacking an evidentiary basis.
In Ray, therefore, the jury instruction contained language about the defendant’s
potential role as an accomplice without providing further context. In Kellam, on the
other hand, the Superior Court approved the State's accomplice liability theory and
instruction which, argues the State, puts the felony murder instruction in context.
Although Trial Counsel, as well as the State and the Superior Court, should have
noticed and requested removal of the outdated language from the felony murder
instruction, the language was not likely to have misled the jury or changed the result
64
of Kellam's trial. I n R a y , it was ultimately the addition of the incorrect accomplice
liability language to the felony murder jury instruction that convinced the Delaware
Supreme Court that the instruction prejudiced Mr. Ray's case. No such flaw existed
in Mr. Kellam's instruction, and thus M r . Kellam cannot show he was prejudiced
by one mention of the outdated language in his felony murder jury instruction.
As stated above, in his Supplemental Trial Counsel Affidavit, Trial Counsel
simply states that he failed to notice and object to the outdated language in the felony
murder jury instruction, and offers no further rationale for his failure to object to the
incorrect jury instruction at trial.
In my view, the defective felony murder instruction given in this case runs
afoul of Ray and falls within the rationale of our Supreme Court in that case. To use
the language of Ray, the instruction may have improperly cleared a new path for
the jury to find that Mr. Kellam was guilty of first degree felony murder. The
instruction told the jury that Mr. Kellam could be held responsible for first degree
felony murder even upon a finding that he had not caused the victims’ deaths if it
determined that his accomplices had done so. This allowed the jury to hold Mr.
Kellam responsible for the crimes of his accomplices.
Under the two prongs of Strickland, failure to object to this jury instruction
was objectively unreasonable, and it is possible that the outcome of the jury’s
65
verdict could have been different had the proper instruction been given.
I grant this claim. The two felony murder convictions are vacated. Those
convictions which are inextricably linked to the felony murder convictions must
also be vacated. I asked counsel at oral argument to address the impact of vacating
the two felony murder convictions, specifically which other convictions must also be
vacated and which ones survive. In my view, in addition to the vacation of the
murder conviction of Count 3, the three related convictions for Possession of a
Firearm during the Commission of a Felony (Counts 4, 5 and 6) must also be
vacated. Moreover, in addition to the vacation of the murder conviction of Count
8, the three related convictions for Possession of a Firearm during the
Commission of a Felony (Counts 9, 10 and 11) must also be vacated.
Failure to Request § 274 Chance Instruction (Degrees of Crime)
Mr. Kellam further argues that the absence of a § 274 Chance instruction
removed another guardrail on the road to conviction, prejudicing him, and that
he might not have been convicted of felony murder, assault, robbery, and home
invasion had the jury been properly instructed.
In Mr. Kellam's case, the § 271 instruction on its own did not adequately
66
instruct the jury on the individualized consideration required under § 274. 127 11
Del. C. § 274 provides that "when, pursuant to § 271 of this title, two or more
persons are criminally liable for an offense which is divided into degrees, each
person is guilty of an offense of such degree as is compatible with that person's
own culpable mental state and with that person's own accountability for an
aggravating fact or circumstance."128 It is undisputed that Mr. Kellam was charged
on a theory of accomplice liability and that as a matter of law felony murder, assault
and robbery are crimes of degrees. Consequently, the jury could have been
instructed specifically on the need to consider Mr. Kellam’s individualized mental
state and individual accountability.
Because Delaware does not distinguish between principal and accessories
under accomplice liability,129 there is a two-step analysis that the jury must make
in order to find a defendant guilty on a theory of accomplice liability where the
charged offense is one divided into degrees. 130 First, it must determine if the
defendant was an accomplice to a criminal offense.131 Second, it must determine
127
Johnson v. State, 711 A.2d 18, 30 (Del. 1998).
128
11 Del. C. § 274.
129
Allen v. State, 970 A.2d 203 (Del. 2009).
130
Id.; Johnson, 711 A.2d at 31.
131
Johnson, 711 A.2d at 31.
67
what degree of the offense the defendant committed, which requires an
individualized consideration of the defendant's mental state and culpability for
aggravating facts or circumstances. 132
Mr. Kellam argues that the jury instructions in his case omitted substantial
legal principles and as a result did not substantively comply with the Delaware
Superior Court rules. While an acceptable accomplice liability instruction was
given in Mr. Kellam's case, there was no instruction given that meets the criteria
set forth in § 274. Mr. Kellam argues that this oversight created a gap in the
substantive law on which the jury was asked to evaluate his case.
It does not matter that Mr. Kellam did not raise the issue at trial because
this is a question of law. 133 The relevant questions are: Were the jury instructions
wrong as a matter of law? And did the errors undermine the jury's ability to
"intelligently perform its duty in returning a verdict?" 134
Felony Murder
In Chance v. State, the Delaware Supreme Court stated, "As a matter of
Delaware law, the jury was required to distinguish between Chance's liability for
132
Id.
133
Chance v. State, 685 A.2d 351,352 (Del. 1996). See also Allen, 970 A.2d at 203.
134
Chance, 685 A.2d at 354.
68
the offense of homicide and Chance's culpability for the degree of homicide, i.e.,
the crime of Murder in the Second Degree, Manslaughter or Criminally
Negligent Homicide." 135 The culpability for the degree of the crime is dependent
on the jury's assessment of the defendant’s own culpable mental state, without
regard to another participant's guilt for a different degree of homicide. 136
Mr. Kellam’s awareness of, and involvement in, the deaths that were
incidental to the January 13, 2014 home invasion were disputed. Under the two-
step review and the § 274 standard, it is possible that the jury could have found
Kellam complicit in the planning and implementation of the home invasion, but
not guilty of his accomplices’ decisions to kill the two victims, or at least not
culpable to the same degree. Mr. Kellam was not present at the scene of the
murders. There was competing evidence as to the motivation for the murders
and where or when the "kill order" was given. There was competing cell phone
data (which Trial Counsel did not introduce, as discussed above) that
contradicted that Mr. Kellam gave the "kill order." Even if Mr. Kellam did plan
home invasions in order to commit robberies, he denied planning or ordering
135
Id. at 359.
136
Id.
69
murders. However, without the § 274 Chance instruction, Mr. Kellam argues
that the jury could have erroneously attributed guilt for the murders to him.
The State responds that the facts o f t h e c a s e did not support a § 274
Chance instruction and Trial Counsel's defense would have been stymied by a
request for such an instruction. Indeed, in his Supplemental Trial Counsel Affidavit,
and as discussed above, Trial Counsel states that he intentionally did not request a
§ 274 instruction for three reasons. First, this was an “all or nothing” case. His
strategy was to obtain not guilty verdicts. Neither he nor Mr. Kellam wanted a
compromise lesser included offense verdict. Moreover, Trial Counsel did not view
Murder Second Degree verdicts as a win for Mr. Kellam. With all the additional
charges, such verdicts would have put Mr. Kellam in prison for life anyway. Second,
Trial Counsel did not believe there was any factual basis to request a § 274 Chance
instruction. The trial judge would not have given a lesser-included instruction if
there was no factual basis in the record for it. Third, Trial Counsel strongly believed
that any resort to lesser-included offenses would have undermined his credibility
with the jury.
In my view, what Mr. Kellam fails to recognize is that with any lesser
included offense instruction there must be a rational factual basis in the evidence
70
to support the instruction. "An accomplice level of liability instruction is not required
unless requested for the same reasons as a lesser included offense instruction."137
Such an instruction can be given only if there is a rational factual basis in the
evidence to support it.138 And just as one may waive his right to lesser offense
instructions available under other statutory provisions, one can choose as a strategic
matter to avoid possible conviction of lesser offenses under § 274. Such was the
case here, and under Strickland I will defer to Trial Counsel’s strategic judgment.
Based on the State's theory and M r . Kellam's chosen defense, there simply was
no rational factual basis to support an argument that Mr. Kellam negligently caused
the two deaths. 139 Either M r . Kellam was not involved in directing the robberies
and murders, in which case he was not guilty, or he was involved, in which case
he was guilty of recklessly causing the deaths. A person cannot send others with
guns to rob drug dealers and yet be unaware that by doing so he is creating a
137
State v. Dickinson, 2012 WL 3573943, at *6 (Del. Super. Ct. Aug. 17, 2012), aff'd,
2013 WL 1296263 (Del. Mar. 28, 2013).
138
Erskine v. State, 4 A.3d 391, 395-96 (Del. 2010) (noting that a fundamental underpinning
to all jury instructions is that there must be a factual basis to support the instruction); 11 Del.
C. § 206(c) ("The court is not obligated to charge the jury with respect to an included offense
unless there is a rational basis in the evidence for a verdict acquitting the defendant of the
offense charged and convicting the defendant of the included offense.").
139
See Lawrie v. State, 643 A.2d 1336, 1341 (Del. 1994) (explaining that the evidence must support
a jury verdict convicting the defendant of the lesser crime rather than the indicted one to justify a
lesser-included offense instruction (citing Ward v. State, 575 A.2d 1156, 1159 (Del. 1990)).
71
substantial risk that death will result.140 Moreover, Trial Counsel had no strategic
reason to request the lesser included offense instruction because it was not
consistent with the defense.141 Trial Counsel's failure to request a § 274 Chance
instruction was not objectively unreasonable. And the lack of such an instruction
does not change the fact that Mr. Kellam cannot show he suffered prejudice
therefrom.
Other Charges
Putting the felony murder charges aside, Mr. Kellam expanded his
argument to include a claim that Trial Counsel also should have requested § 274
Chance instructions for the home invasion, robbery, a n d assault charges.
Trial Counsel addressed this expanded argument in his Second Supplemental
Trial Counsel Affidavit, and the State did so in its Supplement After Oral
Argument. I find Mr. Kellam’s expanded claims unavailing. In my view, those
140
See Lawrie, 643 A.2d at 1341 ("As explained in the 1973 commentary to the Delaware Criminal
Code, 'in the case of criminal negligence the actor is unaware of the risk his conduct is
creating, whereas in the case of recklessness he is aware."' (quoting Del. Crim. Code with
Commentary at 31)).
141
Cf Chrichlow v. State, 2012 WL 3089403, at *2 (Del. Jul. 30, 2012) (finding trial counsel
not ineffective for failing to pursue an accomplice "level of liability" jury instruction because it
would have undermined his "all or nothing" approach and would have weakened his case);
Dickinson, 2012 WL 3573943, at *7 (finding trial counsel's choice not to request lesser-included
offense accomplice liability instruction was reasonably professional trial conduct because the
instruction was inconsistent with defendant's "all or nothing" defense).
72
charges do not logically support § 274 Chance instructions with respect to mens
rea and such jury instructions were not rationally supported by the evidence.
Under Strickland, I defer to Trial Counsel’s trial strategy and do not find his
strategic decisions to be objectively unreasonable. Nor can Mr. Kellam
demonstrate that he suffered prejudice therefrom, or that the results of the trial
would have been different.
Home Invasion
A § 274 Chance instruction was not appropriate for Mr. Kellam's three
home invasion charges because home invasion is not a crime divided into
degrees based on his mental culpability. However, the Court could have
instructed the jury based on Mr. Kellam' s degree of accountability for the
aggravating factor: that one of the participants was armed with a deadly
weapon. 142 To convict Mr. Kellam of home invasion, the State had to prove that
(1) he "intended to promote or facilitate the commission of conduct" resulting in
home invasion; (2) he "aided, counseled, or agreed to aid" the other defendants
in planning or committing the home invasion; and (3) one of the defendants
knowingly entered or remained unlawfully in a dwelling that was occupied with
142
See 11 Del. C. §826A; Allen, 970 A.2d at 213-14.
73
intent to commit a felony therein, a codefendant committed one of the listed
felonies, and a codefendant was armed with a deadly weapon at the time. 143 If
the evidence rationally supported a finding that Kellam did not know a
participant was going to be armed with a gun, he theoretically could have been
acquitted of home invasion.
However, it does not follow a fortiori that Trial Counsel was ineffective for
failing to have requested such an instruction. Because home invasion is not a crime
divided by degrees of culpability, a § 274 Chance instruction would have been
inconsistent with Trial Counsel’s all or nothing defense. If the jury believed M r .
Kellam' s defense that he was not the mastermind behind the home invasions, it
would have acquitted him of home invasion. The evidence did not rationally support
a conclusion that Mr. Kellam could have been involved in the planning of the home
invasions without having knowledge that guns were to be used. The use of guns
was a detail inextricably intertwined in the planning process.
Moreover, Mr. Kellam cannot show prejudice from the Court's failure to
give a § 274 Chance instruction for the home invasion element of possession of
143 See 11 Del. C. § 826A(a); 11 Del. C. § 271.
74
a deadly weapon. The Court instructed the jury with respect to the possession of
a firearm during the commission of a felony (“PFDCF”) charges that Mr. Kellam
had to know that his codefendants possessed a deadly weapon for him to be found
guilty of those charges. The jury convicted Mr. Kellam on all but three of the
PFDCF charges,144 indicating it believed that he knew his codefendants possessed
the weapons. As such, Mr. Kellam cannot show that the result of his trial would
have different had the jury been given a similar instruction for the home invasion
charges.
Robbery
A § 274 Chance instruction was not appropriate as to mens rea for Mr.
Kellam's robbery and attempted robbery charges because all degrees of robbery
and attempted robbery require the same mens rea: intentional conduct.145 The
relevant aggravating factor that increased the robbery charges from robbery in
the second degree to robbery in the first degree in was that a participant in the crime
144
The jury acquitted M r . Kellam of the PFDCF charges stemming from the possession of
a firearm by .an unknown male during the home invasion and attempted robbery of Milton
Lofland. T he jury convicted Mr. Kellam of the other PFDCF charges stemming from that
incident.
145
Richardson v. State, 3 A.3d 233, 237 (Del. 2010) (noting court had previously held
Richardson's robbery and attempted murder charges did not warrant Chance instructions
because all the underlying offenses required the same mens rea); 11 Del. C. §§ 831 & 832.
75
displayed what appeared to be a firearm. As with the home invasion charges, the
evidence did not rationally support conviction of the lesser-included offense of
robbery in the second degree based on the idea that Mr. Kellam was unaware
that one of his codefendants was going to display a firearm during the Nelson
and Hopkins murders and the Foster robbery. Trial Counsel's failure to request
such an instruction was not objectively unreasonable. Moreover, as with charges,
the jury's convictions of Mr. Kellam on all but three of the PFDCF charges
indicated t h a t it believed t h a t M r . Kellam knew his codefendants had
firearms. Thus, Mr. Kellam cannot show prejudice from Trial Counsel’s
failure to request a § 274 Chance instruction for the robbery charges.
Assault
Kellam was charged with three counts of assault: (1) assault in the second
second degree for a codefendant intentionally or recklessly causing physical
injury to Milton Lofland by means of a deadly weapon; (2) assault in the third
degree for a codefendant intentionally or recklessly causing physical injury to
Connie Steward; and (3) assault in the second degree for a codefendant
intentionally or recklessly causing physical injury to Azel Foster by means of a
dangerous instrument. A § 274 Chance instruction would have been
76
inappropriate for the Steward assault because no lesser culpability other than
innocence was appropriate. The Court could have instructed the jury on the
assault in the second degree charges that Mr. Kellam could instead be found
guilty of assault in the third degree if the jury assessed that (1) his mental
culpability for the Lofland and Foster assaults was criminal negligence instead of
intentional or reckless, or (2) the evidence supported a finding that Foster or
Lofland were not assaulted with a deadly weapon or dangerous instrument.146 But
the evidence did not rationally support such an instruction. The evidence
clearly established that Foster was injured by a gunshot wound and that Lofland
was hit in the head with a gun. The circumstances of those incidents simply did not
warrant a finding that the codefendants had acted with criminal negligence in
shooting at Foster or hitting Lofland over the head with a gun.147 Thus, Trial Counsel
was not ineffective for failing to request a § 274 Chance instruction for the second
degree assault charges. Nor can Mr. Kellam show prejudice from Trial Counsel’s
146
See 11 Del. C. § 611(2) (providing a person is guilty of third degree assault if "[w]ith
criminal negligence [he] causes physical injury to another person by means of a deadly
weapon or a dangerous instrument").
147
Lawrie v. State, 643 A.2d 1336, 1341 (Del. 1994) ("As explained in the 1973 commentary
to the Delaware Criminal Code, 'in the case of criminal negligence the actor is unaware of the
risk his conduct is creating, whereas in the case of recklessness he is aware."' (quoting Del.
Crim. Code with Commentary at 31)).
77
failure to request a § 274 Chance instruction for the assault charges.
Assuming arguendo that the § 274 Chance instruction should have been
given, as discussed above, not all the convictions must be vacated and retried. The
two Home Invasion convictions, and the Possession of a Firearm During the
Commission of a Felony convictions associated therewith, remain standing. The
Home Invasion statute permits as a predicate Robbery in any degree.148 The only
two degrees of Robbery are First Degree149 and Second Degree. 150 In this case, the
predicate felony was First Degree Robbery. Since any § 274 Chance instruction
would have required the jury to find either First Degree Robbery or Second Degree
Robbery as a predicate, and since either of these felonies is a predicate for Home
Invasion, any failure to separate First Degree Robbery from Second Degree Robbery
would have had no impact on the jury’s verdict.
I deny this claim.
Cumulative Effect of Errors
Mr. Kellam’s final claim asserts that, even if none of the individual claims
discussed above is sufficient to establish that he is entitled to relief, all the claims
148
11 Del. C. § 826A.
149
11 Del. C. § 832.
150
11 Del. C. § 831.
78
when taken together as a whole have a cumulative effect which r i s e s to the level
of reversible error.
Although Mr. Kellam has established an error by Trial Counsel with
respect to his failure to object to erroneous jury instructions, undermining his
felony murder and related convictions, he has failed to show that he is entitled
to relief based on cumulative errors with respect to the remaining convictions.
“Where there are multiple errors in a trial, the Court weighs their cumulative
effect to determine if, combined, they are 'prejudicial to substantial rights [so] as
to jeopardize the fairness and integrity of the trial process."' 151 Mr. Kellam
argues that he has demonstrated that, absent Trial Counsel’s errors, the outcome
of his trial with respect to the remaining convictions would have been different.
I disagree. There is a plethora of evidence and other factors that support the jury
verdict on the remaining charges.
I deny this claim.
Conclusion
'"Judicial scrutiny of counsel's performance must be highly deferential. It
is all too tempting for a defendant to second-guess counsel's assistance after
151
Johnson v. State, 129 A.3d 882 (Table), 2015 WL 8528889, at *3 (Del. Dec. 10, 2015).
79
conviction or adverse sentence, and it is all too easy for a court, examining
counsel's defense after it has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable."' 152 Despite our Supreme Court's
prohibition on analyzing trial counsel's performance through the "distorting
effects of hindsight," 153 some of the arguments set forth in the original Amended
Petition do just that.
In light of the highly deferential approach I should take when reviewing
such claims, and the strong presumption that Trial Counsel's conduct was
professionally reasonable, Mr. Kellam has not shown that Trial Counsel’s
representation – other than with respect to the erroneous felony murder jury
instruction -- fell below an objective standard of reasonableness or that there is a
reasonable probability that, but for Trial Counsel’s error with respect to the jury
instructions, the result of the case on the remaining convictions would have been
different.
"The defendant is entitled to a fair trial, not a perfect trial." 154 In my view,
except for the erroneous felony murder jury instruction, Mr. Kellam received a
152
Wright, 671 A.2d at 1356-57 (quoting Strickland v. Washington, 466 U.S. at 689).
153
Albury, 551 A.2d at 59.
154
State v. Swan, 2020 WL 7259626, at *20 (Del. Super. Feb. 21, 2020), aff'd, 248 A.3d 839(Del. 2021).
80
fair trial, and his dissatisfaction with the outcome neither changes that fact nor
demonstrates that, with respect to the remaining convictions, Trial Counsel
provided ineffective assistance of counsel under the standards set forth in
Strickland.
For the reasons discussed above, the Petition is GRANTED IN PART with
respect to Mr. Kellam’s two convictions for First Degree Murder (Counts 3 and 8))
and six of his convictions for Possession of a Firearm during the Commission of
a Felony (Counts 4, 5, 6, 9, 10 and 11). I vacate those convictions. All the
remaining convictions stand.
The State shall notify me if it decides to retry Mr. Kellam on the vacated
convictions.
The remaining claims under Mr. Kellam’s Petition are DENIED.
IT IS SO ORDERED.
/s/ Francis J. Jones, Jr.
Francis J. Jones, Jr., Judge
Attachment (Exhibit A)
cc: Prothonotary
Patrick J. Collins, Esquire
81
EXHIBIT A
EXHIBIT A
01/13/14 Incident
Count Years Level V Conviction
1 25 Racketeering
3 Life Murder (Nelson)
4 25 PFDCF (Nelson Murder) Caliber 40
5 25 PFDCF (Nelson Murder) Caliber 22
6 25 PFDCF (Nelson Murder) Caliber 32
8 Life Murder (Hopkins)
9 25 PFDCF (Hopkins Murder) Caliber 40
10 25 PFDCF (Hopkins Murder) Caliber 22
11 25 PFDCF (Hopkins Murder) Caliber 32
12 25 Home Invasion
13 25 PFDCF (Home Invasion) Caliber 40
14 25 PFDCF (Home Invasion) Caliber 22
15 25 PFDCF (Home Invasion) Caliber 32
16 25 Robbery 1 (Hopkins)
17 25 PFDCF (Hopkins Robbery) Caliber 40
18 25 PFDCF (Hopkins Robbery) Caliber 22
19 25 PFDCF (Hopkins Robbery) Caliber 32
20 25 Robbery 1 (Nelson)
21 25 PFDCF (Nelson Robbery) Caliber 40
22 25 PFDCF (Nelson Robbery) Caliber 22
23 25 PFDCF (Nelson Robbery) Caliber 32
24 2 Conspiracy 2
SUBTOTAL 477 + 2 Life
12/11/14 Incident
46 25 Home Invasion (Lofland)
47 25 PFDCF (Home invasion)
48 25 PFDCF (Home Invasion)
51 25 Attempted Robbery 1
52 25 PFDCF (Attempted Robbery 1)
53 25 PFDCF (Attemptrd Robbery 1)
57 25 PFDCF (Assault 2)
58 25 PFDCF (Assault 2)
61 1 Assault 3
62 2 Conspiracy 3
SUBTOTAL 203
12/14/14 Incident
63 25 Home Invasion (Foster)
64 25 PFDCF (Home Invasion)
65 25 PFDCF (Home Invasion)
79 5 Disguise
80 2 Conspiracy 2
81 7 Assault 2
SUBTOTAL 89
TOTAL 769 + 2 Life