Wheeler v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DAEMONT WHEELER, §
§
Defendant Below, § No. 137 & 139, 2015
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware,
§ in and for Kent County
STATE OF DELAWARE, § Cr. ID No. 0911008949
§
Plaintiff Below, §
Appellee. §
Submitted: September 2, 2015
Decided: October 19, 2015
Before STRINE, Chief Justice; HOLLAND, and SEITZ, Justices.
ORDER
This 19th day of October 2015, upon consideration of the appellant’s
Supreme Court Rule 26(c) brief, the State’s response, and the record below, it
appears to the Court that:
(1) On April 7, 2011, after a three day trial, a Superior Court jury found
the appellant, Daemont Wheeler, guilty of Attempted Murder in the First Degree,
Possession of a Firearm During the Commission of a Felony, Possession of a
Firearm by a Person Prohibited (“PFBPP”), and Possession of Firearm
Ammunition by a Person Prohibited (“PFABPP”). These convictions arose from
the shooting of Herbie Davis. Wheeler was declared a habitual offender under 11
Del. C. § 4214(a). Wheeler was sentenced to life imprisonment for Attempted
Murder in the First Degree and thirty eight years of Level V imprisonment for the
other offenses.
(2) On direct appeal, Wheeler argued that his Sixth Amendment Right to
Confrontation was violated when the Superior Court admitted statements into
evidence that were made by people who did not testify at trial.1 We held that the
Superior Court did not err in permitting Davis to testify that shortly after Wheeler
shot him, an eyewitness told Davis’ sister that Wheeler shot Davis. The
eyewitness’ statement fell within the present sense impression and excited
utterance exceptions to the hearsay rule. 2 We also held that the Superior Court
erred in permitting a police officer to testify that Wheeler was his only suspect in
Davis’ shooting after he interviewed three people who were not present at trial.
This testimony constituted indirect hearsay and violated the Confrontation Clause
of the Sixth Amendment. 3 In light of the cumulative nature of the testimony and
Davis’ “compelling” and “emphatic eyewitness identification of Wheeler as the
person who shot him,” we concluded that the error in admitting the police officer’s
testimony was harmless beyond a reasonable doubt and therefore affirmed the
judgments of the Superior Court. 4
1
Wheeler v. State, 36 A.3d 310, 312 (Del. 2012).
2
Id. at 315.
3
Id. at 315-20.
4
Id. at 321.
2
(3) On October 3, 2012, Wheeler filed a motion for appointment of
counsel, which the Superior Court denied. On December 11, 2012, Wheeler filed a
timely motion for postconviction relief under Superior Court Criminal Rule 61
(“Rule 61”). Wheeler contended that his trial counsel and appellate counsel were
ineffective, his right to a speedy trial was violated, and there was prosecutorial
misconduct. The Superior Court referred Wheeler’s motion to a Superior Court
Commissioner, who directed Wheeler’s former attorneys to submit affidavits and
set a briefing schedule. Wheeler filed two more motions for appointment of
counsel, which the Superior Court Commissioner and the Superior Court denied.
(4) On August 20, 2013, the Superior Court Commissioner found that
Wheeler’s speedy trial and prosecutorial misconduct claims were barred by Rule
61(i)(3), and that his ineffective assistance of counsel claims did not satisfy the
two-prong standard in Strickland v. Washington.5 The Superior Court
Commissioner recommended that the Superior Court deny Wheeler’s motion for
postconviction relief. Wheeler filed objections to the report and recommendations
of the Superior Court Commissioner. The Superior Court accepted the
recommendation of the Superior Court Commissioner and denied Wheeler’s
motion for postconviction relief.6
5
466 U.S. 668 (1984).
6
State v. Wheeler, 2013 WL 5881705 (Del. Super. Ct. Oct. 3, 2013), vacated, 2014 WL 44715(Del. Jan. 2, 2014).
3
(5) On appeal, this Court concluded that the Superior Court abused its
discretion in denying Wheeler’s motion for appointment of counsel.7 We vacated
the Superior Court’s October 3, 2013 decision and remanded the matter to the
Superior Court for the appointment of counsel to represent Wheeler on his first
motion for postconviction relief.8
(6) On January 31, 2014, the Superior Court appointed postconviction
counsel (“Postconviction Counsel”) to represent Wheeler. On January 27, 2015,
Postconviction Counsel filed a motion to withdraw and supporting memorandum.
Postconviction Counsel represented that Wheeler’s claims lacked sufficient merit
to be ethically advocated and that they had not discovered any other potential
meritorious grounds for relief. Wheeler opposed the motion to withdraw. The
Superior Court granted the motion to withdraw and denied Wheeler’s motion for
postconviction relief.
(7) Wheeler and Postconviction Counsel filed notices of appeal from the
Superior Court’s order and the appeals were consolidated. Postconviction Counsel
filed a motion for appointment of substitute counsel. This Court permitted
Postconviction Counsel to withdraw and appointed substitute counsel (“Appellate
Postconviction Counsel”).
7
Wheeler v. State, 2014 WL 44715, at *1.
8
Id.
4
(8) On July 20, 2015, Appellate Postconviction Counsel filed a brief and
a motion to withdraw under Supreme Court Rule 26(c). Appellate Postconviction
Counsel asserts that, based upon a complete and careful examination of the record,
there are no arguably appealable issues. Appellate Postconviction Counsel
informed Wheeler of the provisions of Rule 26(c) and provided Wheeler with a
copy of the motion to withdraw and the accompanying brief. Appellate
Postconviction Counsel also informed Wheeler of his right to identify any points
he wished this Court to consider on appeal. Wheeler submitted a memorandum
and exhibits. The State has responded to Wheeler’s points and asked this Court to
affirm the Superior Court’s judgment.
(9) When reviewing a motion to withdraw and an accompanying brief
under Rule 26(c), this Court must: (i) be satisfied that defense counsel has made a
conscientious examination of the record and the law for arguable claims; and (ii)
conduct its own review of the record and determine whether the appeal is so totally
devoid of at least arguably appealable issues that it can be decided without an
adversary presentation.9 This Court reviews the Superior Court’s denial of
postconviction relief for abuse of discretion and questions of law de novo. 10 When
reviewing the Superior Court’s denial of a motion for postconviction relief, this
9
Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).
10
Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
5
Court must first consider the procedural requirements of Rule 61 before addressing
any substantive issues. 11
(10) Wheeler’s arguments on appeal may be summarized as follows: (i) his
trial counsel was ineffective for not moving to sever the PFBPP and PFABPP
charges; (ii) his trial counsel was ineffective for cross-examining the State’s
ballistics expert without a copy of the expert’s report; (iii) his trial counsel was
ineffective for failing to consult with a medical expert before cross-examining
Davis; (iv) his trial counsel was ineffective for failing to object to the prosecutor’s
vouching during closing arguments; (v) his appellate counsel was ineffective for
failing to raise the prosecutor’s vouching; and (vi) his appellate counsel was
ineffective for failing to argue that the State violated Superior Court Criminal Rule
26.2 and withheld material exculpatory evidence when it did not produce a tape
recorded statement Davis made to the police.
(11) To prevail on an ineffective assistance of counsel claim, a defendant
must establish that: (i) his counsel’s representation fell below an objective standard
of reasonableness; and (ii) but for counsel’s unprofessional errors, there is a
reasonable probability that the outcome of the proceedings would have been
different.12 The Strickland standard leads to a “strong presumption that the
11
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
12
Strickland, 466 U.S. at 687-88.
6
representation was professionally reasonable.”13 The defendant must also set forth
and substantiate concrete allegations of actual prejudice.14
(12) Wheeler contends that his trial counsel’s failure to file a motion for
severance of the PFBPP and PFABPP charges constitutes ineffective assistance.
Wheeler does not cite any authority to support this contention. The parties
stipulated at trial that Wheeler was prohibited from possessing a firearm after
having been convicted of a felony or a crime of violence involving physical injury.
Wheeler’s trial counsel prepared a redacted form of the indictment that eliminated
references to Wheeler’s previous conviction for Assault in the Second Degree.
(13) Even if stipulating to Wheeler’s person prohibited status rather than
filing a motion to sever was professionally unreasonable, Wheeler has not shown
that there is a reasonable probability that, but for the supposed error, the outcome
of the trial would have been different. As we recognized on direct appeal,
“Wheeler was well-known to Davis” and Davis’ identification of Wheeler as the
person who shot him was “compelling” and “emphatic.” 15 Wheeler has therefore
not satisfied the second prong of the Strickland analysis.
(14) Wheeler next claims that his trial counsel was ineffective for cross-
examining the State’s ballistics expert without the benefit of the ballistics expert’s
13
Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
14
Younger v. State, 580 A.2d 552, 556 (Del.1990).
15
Wheeler v. State, 36 A.3d at 321.
7
report. Wheeler acknowledges that it is unclear from the record whether his trial
counsel received the ballistics expert’s report before the expert testified. The
record does reflect that the ballistics expert report was admitted as a trial exhibit
before Wheeler’s trial counsel cross-examined the expert. Wheeler does not
identify the information in the report that he claims the expert should have been
cross-examined about by Wheeler’s trial counsel.
(15) Wheeler has not shown his trial counsel’s cross-examination of the
ballistics expert was deficient. The State’s case was based primarily on eyewitness
identification, not ballistics testimony. The ballistics expert testified that the six
shell casings found on the scene were from the same semi-automatic gun that could
have been manufactured by several different companies. On cross-examination,
Wheeler’s trial counsel elicited testimony from the ballistics expert that he had no
idea who shot Davis and that it is possible to leave a fingerprint on a shell casing.
During closing argument, Wheeler’s trial counsel highlighted that there was no
evidence of Wheeler’s fingerprints appearing on any of the shell casings. Under
these circumstances, Wheeler has not shown that his trial counsel’s cross-
examination of the ballistics expert fell below an objective standard of
reasonableness.
(16) Wheeler next contends that his trial counsel was ineffective for failing
to consult with a medical expert before he cross-examined Davis. Wheeler claims
8
that if his counsel had consulted a medical expert, he could have impeached Davis
regarding his testimony that after he was shot in the back, he turned to see Wheeler
holding a gun. Wheeler speculates that Davis, who could not feel his legs after the
shooting and was confined to a wheelchair as a result of the shooting, could not
have turned to see who shot him. Wheeler offers nothing to substantiate his
speculation that a medical expert would have concluded the shooting left Davis
unable to turn his head and see who shot him. Wheeler also disregards that Davis
testified that he heard Wheeler say he disliked Davis before shooting him.
Wheeler’s speculation regarding what a medical expert might conclude does not
overcome the strong presumption that trial counsel’s representation was reasonable
or show a reasonable probability of a different outcome at trial.16
(17) Wheeler next argues that his trial counsel should have objected to the
prosecutor’s improper vouching during closing argument, and his appellate counsel
should have raised the issue on appeal. In his closing argument, the prosecutor
stated:
What does he [Wheeler] do, then? He goes outside, the State would
suggest, to go get his gun, or he got it when he went back down into
the basement, and came back up, but we know he did get a gun. And
we know he pulled it out. And we know he shot the gun six times at
16
See, e.g., Flamer v. State, 585 A.2d at 755 (finding no prejudice where defendant asked Court
to speculate that if medical examiner had been asked certain questions, medical examiner’s
responses would have been beneficial to defense).
9
Herbie Davis, striking him four times. We also know that all of those
shots came from the same gun.17
“[I]mproper vouching occurs when the prosecutor implies personal superior
knowledge, beyond that logically inferred from the evidence at trial.” 18 Even
assuming the prosecutor’s statements constituted impermissible vouching rather
than logical inferences from the evidence at trial and Wheeler could satisfy the first
prong of Strickland, Wheeler has not established a reasonable probability that the
outcome of the proceedings would have been different given the record in this
case, including Davis’ “emphatic” and “compelling” identification of Wheeler as
the person who shot him. 19
(18) Finally, Wheeler claims his appellate counsel was ineffective for
failing to argue that the State violated Superior Court Criminal Rule 26.2 and
withheld material exculpatory evidence when it did not produce a taped statement
Davis made to the police. Wheeler also appears to suggest that his appellate
counsel should have raised the fact that Davis was provided a copy of police
reports and statements of other witnesses before Davis testified. The taped
statement claim is based on Detective Ryder’s testimony at an April 2010
preliminary hearing that Davis gave a taped statement, and Davis’ testimony at
trial that he gave a recorded statement to Detective Ryder. The rest of the record,
17
Appendix to Appellant’s Brief Under Rule 26(c) at A-459.
18
Kirkley v. State, 41 A.3d 372, 377 (Del. 2012).
19
Wheeler v. State, 36 A.3d at 321.
10
however, does not support Wheeler’s claim that the State failed to produce a tape
recorded statement made by Davis.
(19) Before Wheeler’s trial counsel cross-examined Davis at trial, he asked
the State to produce any statements Davis gave to the police. The prosecutor stated
that there were no such statements. When Detective Ryder was cross-examined by
Wheeler’s trial counsel, Detective Ryder testified that he never took a statement
from Davis and there was no taped statement. In his closing argument, Wheeler’s
trial counsel emphasized that Detective Ryder never took a statement from Davis
in depicting the police investigation as incomplete and insufficient. Under these
circumstances, Wheeler has not shown that his appellate counsel was unreasonable
in not arguing on appeal that the State had violated its disclosure obligations.
(20) To the extent Wheeler complains that his appellate counsel should
have argued on appeal that it was improper for Davis to view police reports and
witness statements before he testified, he does not point to anything that prohibited
Davis from viewing the reports and statements. In his cross-examination of Davis,
Wheeler’s trial counsel used Davis’ review of the police reports to suggest Davis’
testimony was based on the reports rather than his own memory of the shooting.
Wheeler has failed to show that his appellate acted unreasonably in not arguing on
appeal that it was improper for Davis to review the police reports.
11
(21) This Court has reviewed the record carefully and has concluded that
Wheeler’s appeal is wholly without merit and devoid of any arguably appealable
issue. We also are satisfied that Appellate Postconviction Counsel has made a
conscientious effort to examine the record and the law and has properly determined
that Wheeler could not raise a meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
12