State v. Johnson

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) ID No. 1503017603
)
RAYSHAUN JOHNSON, )
Submitted: December 19, 2022
Decided: March 14, 2023
ORDER DENYING MOTION FOR POSTCONVICTION RELIEF
Upon consideration of the Defendant Rayshaun Johnson’s amended Motion
for Postconviction Relief (D.I. 107), his trial counsel’s affidavit (D.I. 112), the
State’s response (D.I. 114), and the record in this matter, it appears to the Court that:
I. FACTUAL AND PROCEDURAL BACKGROUND
(1) After a five-day jury trial, Rayshaun E. Johnson was found guilty of
Murder in the First Degree, Possession of a Firearm During the Commission of a
Felony (“PFDCF”), and Conspiracy in First Degree.1 He was later sentenced to
serve, inter alia, a term of life imprisonment.2
(2) Mr. Johnson filed a direct appeal to the Delaware Supreme Court. His
convictions and sentence were affirmed.3
1
Verdict Form, State v. Johnson, ID No. 1503017603 (Del. Super. Ct. Feb. 16, 2017) (D.I. 65).
2
Sentencing Order, Oct. 5, 2018 (D.I. 79).
3
Johnson v. State, 2019 WL 4180617, at *1 (Del. Sept. 3, 2019).
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(3) Thereafter, Mr. Johnson docketed a motion for postconviction relief.4
The Court appointed Mr. Johnson postconviction relief counsel who then filed an
amended motion.5 The State responded,6 Mr. Johnson replied,7 and the motion is
now ripe for decision.
II. THE POSTCONVICTION MOTION
A. MR. JOHNSON’S MOTION CAN BE CONSIDERED ON ITS MERITS.
(4) Before the Court can consider the substance of any postconviction
claim, it must first address Criminal Rule 61’s procedural requirements.8 The
procedural bars in Rule 61 are timeliness, repetitiveness, procedural default, and
former adjudication.9
(5) Here, Mr. Johnson’s postconviction motion was filed less than a year
after his judgment of conviction became final. So, it’s timely. This is also
Mr. Johnson’s first motion for postconviction relief. So, it’s not repetitive. And as
Mr. Johnson’s claim is alleging ineffective assistance of counsel—which generally
4
Mot. for Postconviction Relief, July 7, 2020 (D.I. 91).
5
Order Granting Appointment of Counsel, July 27, 2020 (D.I. 93); Am. Mot. for Postconviction
Relief, Mar. 30, 2022 (D.I. 107).
6
State’s Response, Nov. 3, 2022 (D.I. 114).
7
Reply Br., Dec. 19, 2022 (D.I. 115).
8
Maxion v. State, 686 A.2d 148, 150 (Del. 1996); State v. Jones, 2002 WL 31028584, at *2
(Del. Super. Ct. Sept. 10, 2002).
9
State v. Taylor, 2017 WL 5054262, at *2 (Del. Super. Ct. Oct. 23, 2017). If any of these bars
apply, then the inmate must show entitlement to relief under Rule 61(i)(5). Id.-2-
can’t be raised on direct appeal—he is neither procedurally barred from raising it in
this collateral proceeding nor has it been formerly adjudicated.
(6) Accordingly, the Court will address the merits of Mr. Johnson’s claim.
B. MR. JOHNSON’S SOLE POSTCONVICTION CLAIM
(7) Mr. Johnson suggests his trial counsel was ineffective for failing to seek
exclusion of evidence or testimony regarding then-fourteen-year-old eyewitness,
Umar Mohammed’s, pre-trial identification of Mr. Johnson as one of the shooters
who gunned down Theodore Jackson.10 If trial counsel would have sought exclusion
of such evidence, says Mr. Johnson, trial counsel would have been successful.11 And
in Mr. Johnson’s eyes, without that evidence “there [was] a reasonable probability
that the jury would have acquitted him on the Murder First charge . . . .”12
III. APPLICABLE LEGAL STANDARDS
(8) A movant who claims ineffective assistance of counsel must
demonstrate that: (a) his defense counsel’s representation fell below an objective
standard of reasonableness, and (b) there is a reasonable probability that but for
counsel’s errors, the result of the proceeding would have been different.13
10
Am. Mot. for Postconviction Relief at 37-40.
11
Id. at 37.
12
Id. at 39-40.
13
Strickland v. Washington, 466 U.S. 668, 694 (1984); see also Alston v. State, 2015 WL
5297709, at *2-3 (Del. Sept. 4, 2015).
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(9) There is a strong presumption that counsel’s representation was
reasonable,14 and “[i]t is not this Court’s function to second-guess reasonable trial
tactics” engaged by trial counsel.15 Too, one claiming ineffective assistance “must
make specific allegations of how defense counsel’s conduct actually prejudiced the
proceedings, rather than mere allegations of ineffectiveness.”16 A movant must
prove both—deficient attorney performance and resulting prejudice—to succeed in
making an ineffective assistance of counsel claim.17 Failure to do so on either will
doom the claim, and the Court need not address the other.
IV. DISCUSSION
(10) Mr. Johnson challenges his first-degree murder conviction via an
assertion that if trial counsel had been effective, he would have successfully moved
to exclude Mr. Mohammed’s out-of-court identification.18 And by not doing so,
Mr. Mohammed’s in-court testimony was bolstered because of that previous faulty
14
See Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
15
State v. Drummond, 2002 WL 524283, at *1 (Del. Super. Ct. Apr. 1, 2002).
16
Alston, 2015 WL 5297709, at *3 (citing Wright, 671 A.2d at 1356); Monroe v. State, 2015
WL 1407856, at *5 (Del. Mar. 25, 2015) (citing Dawson v. State, 673 A.2d 1186, 1196 (Del.
1996)).
17
Strickland, 466 U.S. at 694; Ploof v. State, 75 A.3d 811, 825 (Del. 2013) (“Strickland is a two-
pronged test, and there is no need to examine whether an attorney performed deficiently if the
deficiency did not prejudice the defendant.” (citation omitted)); State v. Hamby, 2005 WL 914462,
at *2 (Del. Super. Ct. Mar. 14, 2005).
18
Am. Mot. for Postconviction Relief at 18-40.
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identification.19
(11) The State called Mr. Mohammed as an eyewitness to the shooting.20
After laying the proper foundation the State played an interview conducted by the
Children’s Advocacy Center (CAC) with Mr. Mohammed the night of the
shooting.21
(12) In that interview Mr. Mohammed recounted the shooting he had just
witnessed and told the CAC interviewer that one of the two suspects he observed
had dreadlocks and that both were “black, like dark-skinned.”22 When asked
whether the suspects had any facial features or tattoos, Mr. Mohammed said that he
“didn’t see their faces.”23 But that he did see a big tattoo on one of the suspect’s
arms and a number of chest tattoos on one of the suspects.24 Mr. Mohammed
reiterated that he “didn’t really see their face” instead he “just saw like their hair and
the hat . . . .”25
(13) Mr. Mohammed was later interviewed by police detectives. During that
19
See id. at 38-39.
20
Feb. 13, 2017 Trial Tr. at 160-67 (D.I. 75).
21
Id. at 166-167. That interview was conducted by a CAC forensic interviewer at the request of
the Wilmington Police Department. Appendix to Def.’s Am. Mot. for Postconviction Relief
(“Def.’s App.”) at A168-A169 (D.I. 108).
22
Def.’s App. at A169.
23
Id. at A170.
24
Id. at A169-A171.
25
Id. at A172; A176 (“I don’t know because like the distance that I was I didn’t really see their
face.”).
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interview, he was shown a six-pack photo array.26 Detectives first asked whether
the suspect was in the six-pack to which Mr. Mohammed said no, but then told
detectives he thought it could be Number 3, until finally arriving at Number 4 and
circling and signing his name to that choice.27
(14) At trial, on direct examination, the State showed Mr. Mohammed,
without objection from trial counsel, the photo he circled and signed.28 On cross-
examination trial counsel asked Mr. Mohammed:
Q. In this video on several occasions, at least four, you say you
didn’t see the face of the individual that was doing the shooting;
isn’t that correct?
A. Yes.
Q. Yet several days later you picked somebody out. Did you pick
somebody out from the shooting or is it somebody you may have
seen earlier in the day?29
(15) Trial counsel explained this tactic in his Rule 61(g) affidavit.30
Specifically, he purposely did not attempt to exclude the out-of-court identification
because he sought “[t]o demonstrate Mohammed’s bias,” and to this end “his out of
court identification as well as his inability to make prior identifications was essential
26
Id. at A179.
27
Id. at A179-A181.
28
Feb. 14, 2017 Trial Tr. at 4-5 (D.I. 74).
29
Id. at 6.
30
Trial Counsel Affidavit at 2 (D.I. 112).
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to the defense.”31 In short, counsel explained that his “decision to not challenge the
identification . . . was part of the defense strategy.”32
(16) “[A] lawyer’s performance is constitutionally deficient only if no
competent attorney would have chosen the challenged course of action.”33 It is not
the role of the Court to determine “what the best lawyers would have done . . . [or]
even what most good lawyers would have done.”34 “Instead, the Court must
determine whether trial ‘counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed [to] the defendant by the Sixth
Amendment.’”35
(17) While Mr. Johnson wishes to frame it otherwise,36 “Strickland doesn’t
deem trial counsel ineffective for not pursuing the best or most successful strategy;
instead, it requires trial[] counsel be informed by a thorough investigation of law and
31
Id.
32
Id.
33
Green v. State, 238 A.3d 160, 178 (Del. 2020) (citing Premo v. Moore, 562 U.S. 115, 124
(2011)).
34
Id. (alteration in original) (quoting White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992)).
35
State v. Peters, 283 A.3d 668, 686 (Del. Super. Ct. 2022) (alteration in original) (citing Burns
v. State, 76 A.3d 780, 788 (Del. 2013)).
36
Reply Br. at 2. Mr. Johnson’s assertion that trial counsel’s strategy was unreasonable is rooted
in his belief that a better strategy was available. Id. (“Trial counsel never asserted in their affidavits
that they, after reviewing the evidence against Mr. Johnson and the law, decided that only
challenging Mohammed’s out-of-court identification at trial was the best strategic route to take.”
(emphasis added)). Maybe so. But under Strickland, trial counsel is not deficient for failing to
pursue what others might consider the best or a better strategy. Peters, 283 A.3d at 687 (citing
Hoskins v. State, 102 A.3d 724, 730 (Del. 2014)); Burns, 76 A.3d at 788).
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facts.”37 And the reasonableness of trial counsel’s actions cannot be measured by
whether the strategy was successful.38
(18) Trial counsel made a strategic decision to not challenge the out-of-court
identification so that he could use it to impeach Mr. Mohammed and, in turn, the
entirety of the police investigation. That’s not counsel deficiency. And on that basis
alone, Mr. Johnson’s sole claim of ineffective assistance fails.39
(19) Even if Mr. Johnson could show his trial counsel was deficient,
Mr. Johnson cannot show resulting prejudice. The necessary prejudice here must be
a reasonable probability that but for counsel’s errors, the State would not have had
enough evidence to convict Mr. Johnson of first-degree murder.40
(20) On the prejudice prong, Mr. Johnson asserts that “without the
admission of Mohammed’s unreliable identification, there is a reasonable
probability that the jury would have acquitted him on the Murder First charge . . .
.”41 Mr. Johnson asserts that “Mohammed was the only eyewitness to identify [him],
aside from Harris, who was an incredibly self-interested witness.”42 Whether the
jury chose to credit the testimony given by Mr. Mohammed and Christopher Harris
37
Peters, 283 A.3d at 687 (citing Hoskins, 102 A.3d at 730; Burns, 76 A.3d at 788).
38
State v. Wright, 653 A.2d 288, 297 (Del. 1994).
39
Am. Mot. for Postconviction Relief at 18-40
40
Harden v. State, 180 A.3d 1037, 1045 (Del. 2018).
41
Am. Mot. for Postconviction Relief at 39-40.
42
Id. at 38.
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is within their province.43 Mr. Mohammed testified at trial that he saw the shooters.44
What was left was either the corroboration or impeachment of his in-court testimony.
And to pursue those divergent ends, both the State and Mr. Johnson wanted to use
his out-of-court identification and interviews.
(21) The impact of the out-of-court identification went to the credibility of
Mr. Mohammed—and in trial counsel’s view, the police investigation—the
determination of which was in jury’s hands.45
(22) Even without Mr. Mohammed’s testimony the evidence was
substantial. The jury heard from 23 witnesses (including Mr. Mohammed) who
testified that Jeffrey Clark received information that someone was “disrespecting”
him and, along with Mr. Johnson and Mr. Harris, went to confront that individual.46
The jury heard testimony that both Mr. Clark and Mr. Johnson were carrying guns.47
The jury heard testimony that placed Mr. Johnson and Mr. Clark at the scene of the
shooting when it occurred.48 The jury heard testimony that the victim was shot by
43
Washington v. State, 4 A.3d 375, 378 (Del. 2010).
44
Feb. 13, 2017 Trial Tr. at 162-63.
45
Washington, 4 A.3d at 378.
46
Feb. 15, 2017 Trial Tr. at 59-61 (Christopher Harris) (D.I. 77); Feb. 13, 2017 Trial Tr. at 36-
37 (Marcel Swanson); Feb. 14, 2017 Trial Tr. at 58-59, 62-63 (Doris Reyes).
47
Feb. 13, 2017 Trial. Tr. at 66-67.
48
Feb. 13, 2017 Trial Tr. at 29-30; Feb. 15, 2017 Trial Tr. at 62-69; Feb. 13, 2017 Trial Tr. at
148-49.
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bullets fired from two guns.49 And the jury heard testimony that Mr. Johnson told a
friend “we got him” in reference to the killing.50
(23) When viewing the totality of the evidence and the reasonable inferences
drawn therefrom in the light most favorable to the State, it is clear that a reasonable
trier of fact could find Mr. Johnson committed first-degree murder. So Mr. Johnson
fails to satisfy the second prong of Strickland.
VI. CONCLUSION
Mr. Johnson has proved neither the deficient performance by counsel nor the
prejudice required for relief under Strickland. Accordingly, Mr. Johnson’s Motion
for Postconviction Relief is DENIED.
SO ORDERED this 14th day of March, 2023.
Paul R. Wallace, Judge
Original to Prothonotary
cc: Matthew Bloom, Deputy Attorney General
Natalie Woloshin, Esquire
Anthony A. Figliola, Jr., Esquire
49
Feb. 14, 2017 Trial Tr. at 95-97.
50
Feb. 13, 2017 Trial Tr. at 36-37 (Marcel Swanson)
Q. What did he say when he called your phone?
A. He says, “What’s up?” I said, “What’s up?” He said, “Remember the boy Kyle
I was telling you about?” I said, “Yes.” I think we got him.”
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