State v. Coleman

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) ID. No. 1511006774A/B
)
KEVIN COLEMAN, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Upon Consideration of the Commissioner’s Report and Recommendation Denying
Defendant’s Motion for Postconviction Relief:
ACCEPTED.
Upon Consideration of Defendant’s Motion for Postconviction Relief:
DENIED.
John S. Taylor, Esquire, Deputy Attorney General, DELAWARE DEPARTMENT OF
JUSTICE, Wilmington, Delaware, Attorney for the State of Delaware.
Patrick J. Collins, Esquire, COLLINS, PRICE & WARNER, Wilmington, Delaware,
Postconviction Counsel for Defendant.
RENNIE, J.
INTRODUCTION
On April 29, 2016, a jury found Kevin Coleman (“Coleman”) guilty of
Carrying a Concealed Deadly Weapon (“CCDW”) and Resisting Arrest, arising
from a disturbance call and subsequent arrest.1 Coleman was sentenced to 23 years
of unsuspended Level V time.2 He now moves for Postconviction Relief under
Superior Court Criminal Rule 61 (“Motion”). 3 This Memorandum Opinion
addresses his Motion, the Commissioner’s Report and Recommendation4
(“Commissioner’s Report”), and his Appeal from the Commissioner’s Report and
Recommendation (“Appeal”).5 For the reasons set forth below, the Commissioner’s
Report is accepted on separate grounds, and Defendant’s Motion for Postconviction
Relief is denied.
FACTUAL AND PROCEDURAL HISTORY
A. Factual Background6
At around 9:30 p.m. on November 11, 2015, Wilmington Police Officers
Michael Saint-Vil (“Officer Saint-Vil”) and James Wiggins (“Officer Wiggins”)
1
D.I. 24.
2
D.I. 15.
3
D.I. 51.
4
D.I. 59.
5
D.I. 63.
6
These facts are drawn from Officer Saint-Vil’s and Officer Wiggins’ testimony at trial. (All
references to the Appendix provided by Postconviction Counsel to Coleman’s Amended Motion
are hereinafter referred to as “A__”).
2
received a dispatch call while on patrol regarding a disorderly person in front of 901
Spruce Street. 7 The caller described the person as a black male wearing an all gray
jumpsuit. 8 When officers responded to the scene in their fully-marked police car,
they encountered Coleman who fit the caller’s description.9
Officer Saint-Vil got out of the police car and shouted, “Hey, can I talk to you
for a second?” 10 Upon noticing the officer, Coleman mounted his bicycle and began
to ride away causing Officer Saint-Vil to chase him on foot.11 Officer Wiggins
followed behind in the police car.12
Officer Saint-Vil briefly lost contact with Coleman, but quickly regained
sight.13 Coleman failed to obey Officer Saint-Vil’s orders to stop.14 Because
Coleman kept reaching on the right side of his body to the waistband of his pants,
Officer Saint-Vil believed Coleman was carrying a gun. 15 As a result, Officer Saint-
Vil drew his taser. 16
With one hand on the waistband of his pants, Coleman attempted to maneuver
7
A200-01, A249.
8
A249, A22.
9
A202.
10
A205.
11
A206.
12
Id.
13
A206-07.
14
Id.
15
A208.
16
Id.
3
from the street onto the sidewalk.17 He, however, lost control of his bike and fell to
the pavement.18 Officer Saint-Vil ordered Coleman to stay down, but he failed to
comply.19 Officer Saint-Vil attempted to deploy his taser, but it did not work.20
Officer Wiggins then arrived and helped Officer Saint-Vil take Coleman into
custody.21 An initial pat down of Coleman revealed a loaded firearm in the right
waistband of his pants underneath his shirt. 22
After placing Coleman in the back seat of the police car, Officer Saint-Vil
noticed Coleman shifting around. 23 Upon arriving at the police station, Officer
Saint-Vil searched the back of the police car and found a drawstring bag with 93
bags of heroin inside. 24 Coleman was the only person in the police car that day. 25
B. Leading up to trial
On December 7, 2015, a grand jury indicted Coleman on seven offenses:
Possession of a Firearm by a Person Prohibited (“PFBPP”), Possession of
Ammunition by a Person Prohibited (“PABPP”), Possession of Heroin—Tier 1 with
Aggravating Factor, CCDW, Resisting Arrest, Bicycle Use at Night Without
17
Id.
18
Id.
19
Id.
20
Id.
21
A209.
22
Id., A210.
23
A211.
24
A212
25
A283.
4
Headlamp, and Failure to Stay on the Right Side of Roadway.26
Coleman’s trial counsel (“Trial Counsel”) had just been assigned the case
when Coleman decided to reject the offered plea deal at his final case review on
April 1, 2016. 27
On April 25, 2016, Trial Counsel filed a motion to sever the person prohibited
charges. 28 The Trial Judge granted the motion before the start of the trial. 29
C. The Trial
On April 28, 2016, the “A” case went to trial, and after a half-day of evidence,
the State rested. 30 On April 29, 2016, the Trial Judge conducted a colloquy with
Coleman who elected not to testify.31 The defense did not present any evidence.32
The State entered a nolle prosequi on the charge of Failure to Stay on the Right Side
of Roadway.33
The State gave a closing argument outlining the elements of each charge and
pointing to the relevant evidence. 34 For CCDW, the prosecution argued that the
26
D.I. 2.
27
A52. In the plea deal, the State sought to have Coleman declared a habitual offender on the
PFBPP charge but would cap its recommendation to the mandatory minimum of 15 years at Level
V. Id.
28
A3, D.I. 21.
29
A169.
30
A283. The “A” case consisted of the following charges: Possession of Heroin, CCDW, Resisting
Arrest, Bicycle Use at Night Without Headlamp, and Failure to Stay on the Right Side of Roadway.
31
A292-94.
32
A295.
33
A350.
34
A299-02.
5
firearm was a deadly weapon and Coleman had possession of it, because it was found
on his person. 35 As to concealment, the prosecutor pointed out that the gun was not
visible while Coleman was biking, when Officer Saint-Vil engaged him in a foot
chase, nor when he was clutching the right side of his waist.36 For the “knowingly”
state of mind, the State averred that the weight and size of the gun was heavy and
large enough that Coleman must have known that it was in the waistband of his
pants. 37 Moreover, when explaining the “knowingly” state of mind required for
CCDW, the prosecutor read directly from the CCDW charge, stating “[a] weapon—
this will be in the jury instructions—may be concealed even though easily
discoverable through routine police investigative techniques, which is exactly what
happened here.”38 Thereafter, the State ended closing argument by asking the jury
to find Coleman guilty on all counts.39
Between the time when the State ended its closing argument and when Trial
Counsel began his closing argument, Trial Counsel proposed to Coleman the trial
strategy of conceding guilt on the minor charges and attempting to get an acquittal
35
A299.
36
A300.
37
A301.
38
A302.
39
A308.
6
on CCDW. 40 Trial Counsel claims Coleman agreed. 41 Notably, the record does not
reflect that any break in trial occurred nor was a recess sought by Trial Counsel to
discuss this trial strategy with Coleman.
Trial Counsel then began closing. The relevant portions of Trial Counsel’s
closing are as follows: 42
You must harken back your memory to yesterday and decide for
yourself, was there testimony whatsoever about whether the bicycle at
issue was equipped with a lamp . . . there was very little in way of
description of the bike itself.
Do you remember anything about the color of the bike?
Do you remember anything about the type of bike it was? Was it a
Huffy? Was it a Schwinn? Was it something else?
Was there testimony about other [accoutrements] to the bike: reflectors,
lights, lamp? Anything else? If you remember there being testimony
in that regard, by all means find him guilty because that is part of the
law. You must have a light. Just like a vehicle, a car, you might have
a light at night. So if you heard that and you remember that and you’re
convinced of that, you’re firmly convinced that that was the testimony,
by all means, do your duty and find him guilty.
The second issue . . . is the resisting arrest charge. There is a discussion
of Officer Saint-Vil saying, Stop, may I talk to you?
There was a discussion of Officer Wiggins saying, Stop, police. And
although I pointed out it wasn’t in his police report, there’s no reference
to him saying, Stop, police. He said, well, thinking about it, I remember
40
D.I. 80.
41
Id. The Court notes there is a discrepancy regarding whether or not Coleman agreed to this
strategy. For purposes of this memorandum opinion, the issue of whether or not he agreed does
not change the analysis.
42
The Court finds Trial Counsel’s closing argument important enough to add in its majority.
7
him saying, Stop, police, as Mr. Coleman is riding alongside the
vehicle.
He’s yelling out the open windows, if you remember that testimony.
You know what? We don’t dispute that;
We don’t dispute that he was fleeing from the police officers. So we
invite you to find him guilty of resisting arrest.
But that’s not the end of the story.
The [big-ticket] item is the carrying a concealed deadly weapon charge.
And while I’m at it, find him guilty of the heroin charge, as well. Find
him guilty of that, because that ties into the biggest item on the chart,
and that’s the carrying a concealed deadly weapon charge.
There is no argument that the weapon at issue was a firearm.
You saw it.
There was testimony that it, in fact, had a magazine and ammunition.
No question that’s a firearm.
Did Mr. Coleman have access to it somewhere on his person? Sure.
Sure.
There was testimony that when he ran into the car, he fell to the ground.
They did a [pat down]. It was somewhere on his person. They found
it. Was it concealed?
Under the law, [the Trial Judge] will tell you that concealed—and I’ll
read it—means “the weapon is so situated upon or about the person
carrying it as to not be discernable by those who would come near
enough to see it in the usual associations of life by observation.
Absolute invisibility is not required.”
I ask you to question is absolute visibility required.
The next item or element that the State must prove is that it was
8
knowingly concealed. That is to say, was Mr. Coleman knowingly
attempting to hide from view by others a weapon, a firearm?
If Mr. Coleman was, as the State would have you believe, aware that
the police were chasing him—and we’ve conceded he was—was it his
intention, was it his plan, to conceal the gun from view?
Well, given that we’ve conceded that he had in his possession a green
Crown Royal bag containing 93 separate baggies containing heroin, an
illegal substance under the law, given that fact, isn’t it reasonable to
suggest that what Officer Saint-Vil is seeing as he’s pursuing the
defendant from behind, Officer Saint-Vil said he was on foot pursuing
the defendant as the defendant rode with one hand, his left hand on the
handlebar and the other clutching his side, isn’t it reasonable to
conclude that Mr. Coleman knew his goose was cooked?
He knew the police were after him.
He knew he had in his possession 93 packets of illegal heroin.
Isn’t it reasonable to conclude that’s what he was gripping?
As for the gun, if he was concerned about the gun—and, incidentally,
what’s, on its face, illegal about possessing a gun?
Drugs, yes. What about a gun?
If he was really concerned about the implications of having a gun,
weren’t there many opportunities for Mr. Coleman to simply throw it
away, discard it?
You remember Officer Saint-Vil say that he wasn’t able to maintain
visual contact of Mr. Coleman the entire time. There were times when
he lost sight of him.
Wouldn’t those times have provided Mr. Coleman an opportunity to
discard that gun out of sight of the police as he’s riding down the street,
if that was his concern, and he knows there’s a car following him, he
knows there’s someone on foot following him?
9
If he knows he’s going to get caught with a gun and that has
consequences for him, why keep it on him?
So, those are the two issues I’d ask you to consider.
Was it actually concealed, knowingly concealed? You heard that it was
found around his waistband. But, was it on the outside? Was it thinly
disguised inside? Those are questions you need to ask yourself.
And the second is did he knowingly conceal, or was it really the heroin
he was hoping to hide from the police?
...
It’s the State’s burden to prove to your satisfaction all of those elements.
And we’ve already conceded to two of those charges, the resisting
arrest and the heroin.
So your work now begins with the consideration of those two other
items: The bicycle and the carrying a concealed. [sic]
If, and only if, after deliberating on those issues you are firmly
convinced of the defendant’s guilt may you find him guilty . . . . 43
Jury deliberations began around 11:17 a.m., and after four jury notes
presenting questions to the Trial Judge, the jury announced its verdict at 3:21 p.m.44
The jury found Coleman guilty of CCDW and Resisting Arrest but not guilty as to
Possession of Heroin and Bicycle Use at Night Without Headlamp. 45
43
A309-17.
44
A372. The questions posed to the Trial Judge during deliberations included: (1) clarification of
the definition of “concealed,” (2) an inappropriate legal analysis, (3) whether Trial Counsel’s
closing statements were enough to find Coleman guilty of the charges, and (4) an outline of
thoughts without posing a true question. D.I. 59.
45
A373-74. The “B” case consisted of Coleman’s person prohibited charges. A424-25.
10
Following the “A” case, Coleman elected to have the “B” case proceed to a
bench trial. 46 On July 29, 2016, the Trial Judge found Coleman guilty of PFBPP and
PABPP.47 On September 9, 2016, the State filed a motion to declare Coleman a
habitual offender on the PFBPP and CCDW charges.48 The Court granted the State’s
habitual offender motion 49 and sentenced Coleman to the habitual mandatory
minimum of 23 years of unsuspended Level V time. 50
Coleman appealed his conviction to the Delaware Supreme Court, and on
April 5, 2018, the Delaware Supreme Court affirmed Coleman’s conviction.51
D. Postconviction Relief
On April 23, 2019, Coleman filed a motion for an extension of time to file his
Postconviction Relief Motion due to not having access to a Delaware legal library
and being incarcerated in Pennsylvania.52 The Court granted his request and
extended his filing deadline until June 24, 2019.53 On June 25, 2019, Coleman filed
his Pro Se Postconviction Relief Motion.54 On July 25, 2019, the case was referred
46
A376-78.
47
A529-30. There was a delay between the “A” case and the “B” case due to an issue establishing
Coleman’s identity as the person in a previous Robbery Second Degree conviction upon which the
State sought convictions for PFBPP and PABPP. A424-25.
48
A538-43.
49
A552, A544-45.
50
A555-56, A558-62.
51
Coleman v. State, 2018 WL 1673389, at *1 (Del. Apr. 5, 2018).
52
D.I. 56.
53
D.I. 57.
54
D.I. 42. Even though Coleman’s motion was a day late, the Court exercised its discretion and
decided not to bar the postconviction motion on a procedural basis.
11
to a Commissioner for a Report and Recommendation. 55 The Commissioner
appointed conflict counsel to aid Coleman, and on January 15, 2020, directed that
an amended postconviction relief motion be filed by April 14, 2020.56
On May 21, 2020, Coleman, with the help of postconviction relief counsel,
filed the instant Motion.57 Shortly thereafter on July 8, 2020, Trial Counsel filed an
affidavit. 58 The State submitted a response to the Motion on August 5, 2020. 59 On
August 31, 2020, Coleman submitted a response to Trial Counsel’s affidavit and the
State’s response.60
On September 14, 2020, the Commissioner filed her Commissioner’s
Report.61 On October 6, 2020, Coleman appealed the Commissioner’s Report.62
The Court granted an unopposed motion to extend the record on December 8, 2020.63
On March 24, 2022, the Trial Judge then held a hearing to determine if an evidentiary
hearing was needed and found one was necessary.64
This matter was reassigned from the Trial Judge to a second judge on October
55
D.I. 45.
56
D.I. 49.
57
D.I. 51.
58
D.I. 54.
59
D.I. 58.
60
D.I. 55.
61
D.I. 59.
62
D.I. 63.
63
D.I. 65.
64
D.I. 68.
12
17, 2022, and then reassigned to the Presiding Judge on October 18, 2022.65
On February 2, 2023, a status conference on the Motion was scheduled to
commence. 66 Following an issued continuance, the conference was held on April 4,
2023, in which counsel agreed to schedule an evidentiary hearing. 67 Two extension
requests were filed by the State and postconviction counsel respectively. 68 On
January 25, 2024, following complications with the scheduling of an evidentiary
hearing, the Presiding Judge approved a request for counsel to obtain written
answers from Trial Counsel in lieu of an evidentiary hearing. 69 Trial Counsel’s
written answers (“Affidavit”) were submitted to the Court on April 25, 2024. 70 The
Court now reviews the Motion and Coleman’s Appeal.
LEGAL ANALYSIS
Under 10 Del. C. § 512(b)(1), the Court may designate a commissioner to
review a postconviction relief motion and provide a report and recommendation to
the Court.71 Parties may then submit objections to the Commissioner’s finding.72
The Court shall then “make a de novo determination of those portions of the report
65
D.I.s 70, 71.
66
D.I. 72.
67
D.I. 75.
68
D.I. 77.
69
D.I. 79.
70
D.I. 80.
71
10 Del. C. § 512(b)(1)b.
72
10 Del. C. § 512(b)(1)d.
13
or specified findings of fact or recommendations to which an objection is made.” 73
Following review, the Court may “accept, reject, or modify, in whole or in part, the
findings or recommendations made by the Commissioner.”74
A. Rule 61 Procedural Bars
The Court reviews a postconviction relief motion under Superior Court
Criminal Rule 61.75 Pursuant to Rule 61, an incarcerated individual may seek
suspension of his conviction by establishing a lack of jurisdiction or alternate ground
that sufficiently creates a collateral attack upon the conviction. 76 However, Rule 61
contains procedural bars that prohibit defendants from having “unlimited
opportunities to relitigate their convictions.” 77
Prior to a review of any meritorious basis for a postconviction relief motion,
the motion must first survive the procedural bars.78 Under Rule 61(i), four
procedural bars exist. 79 Rule 61(i)(1) requires a motion for postconviction relief to
be filed within one year of a final judgment or conviction.80 Rule 61(i)(2) bars
successive motions for postconviction relief, 81 and pursuant to Rule 61(i)(3) and
73
Id.; State v. Bartell, 2020 WL 6480845, at *1 (Del. Super. Nov. 4, 2020).
74
Id.75
Super. Ct. Crim. R. 61(a)(1).
76
Id.77
Ploof v. State, 75 A.3d 811, 820 (Del. 2013).
78
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
79
Super. Ct. Crim. R. 61(i)(1)-(4).
80
Super. Ct. Crim. R. 61(i)(1).
81
There are two exceptions to Rule 61(i)(2). Rule 61(i)(2) bars successive or subsequent motions
for postconviction relief unless the movant is able to “pled with particularity” that (i) “new
14
(4), any ground for relief not previously raised is deemed waived and any claims
formerly adjudicated are thereafter barred.82
There is an exception to the Rule 61(i)(3) procedural bar to relief. Procedural
default may be overcome if the movant shows “(A) cause for relief from the
procedural default and (B) prejudice from violation of the movant’s rights.” 83 A
“cause” for relief from procedural default can be shown through an ineffective
assistance of counsel claim (“IAC”). 84 IAC claims cannot be raised at any earlier
stage in the proceedings and are properly presented through a motion for
postconviction relief. 85
Because Coleman brings an IAC claim, this is his first postconviction relief
motion,86 and the motion was timely filed 87; Coleman’s Motion is not procedurally
barred and warrants review on its merits.
evidence exists that creates a strong inference that the movant is actually innocent in fact of the
acts underlying the charges of which he was convicted” or (ii) “a new rule of constitutional law,
made retroactive to cases on collateral review by the United States Supreme Court or the Delaware
Supreme Court, applies to the movant’s case and renders the conviction or death sentence invalid.”
Super. Ct. Crim. R. 61(d)(2).
82
This includes proceedings leading to the judgment of conviction, in an appeal, in a
postconviction proceeding, or in a federal habeas corpus proceeding. See Super. Ct. Crim. R.
61(i)(5), (d)(2)(i), (ii).
83
Super. Ct. Crim. R. 61(i)(3)(A), (B).
84
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
85
Sabb v. State, 2021 WL 2229631, at *1 (Del. May 28, 2021); Green v. State, 238 A.3d 160, 187-
188 (Del. 2020); Whittle v. State, 2016 WL 2585904, at *3 (Del. Apr. 28, 2016); State v. Evan-
Mayes, 2016 WL 4502303, at *2 (Del. Super. Aug. 25, 2016).
86
D.I. 42.
87
Coleman’s conviction became final when the Supreme Court affirmed his conviction on April
5, 2018. D.I. 41. Coleman filed for an extension of time, which the Court granted, resetting his
deadline for June 24, 2019. D.I.s 56, 57. A placeholder motion was received by chambers on June
15
B. IAC Claim
Coleman appealed the Commissioner’s Report, arguing that the Strickland
test utilized by the Commissioner in denying his Motion was incorrect and that the
Cronic/Cooke test applies.88 Coleman posits that under the Cronic/Cooke test
prejudice is presumed and Trial Counsel’s decisions to (1) concede guilt during
closing argument to certain charges and (2) employ a clearly deficient strategy to
fight the remaining ones were objectively unreasonable.89
1. Cronic/Cooke Test
The Court agrees with the Commissioner that the Strickland test applies. The
primary framework for examining IAC claims falls under Strickland v.
Washington. 90 Strickland consists of a two-part test where the defendant must show
that: (1) counsel’s conduct fell below an objective standard of reasonableness (the
“performance prong”) and (2) but for counsel’s errors, there was a reasonable
probability that the proceeding would have rendered a different result (the “prejudice
prong”). However, the Court will presume the defendant has satisfied the prejudice
21, 2019, but not docketed until June 25, 2019. D.I. 42. Because of this, the Court used its
discretion to consider the Motion timely. D.I. 59.
88
D.I. 63.
89
Id.90
466 U.S. 668 (1984).
16
prong if the defendant demonstrates that his case falls within one of the specified
categories of the Cronic/Cooke test.
The United States Supreme Court in Cronic (adopted by the Delaware
Supreme Court and applied in Cooke v. State91) articulated three exceptions for when
Strickland’s prejudice prong is deemed presumed. 92 The exceptions are: (1) when
there is a complete denial of counsel, (2) when counsel fails to subject the
prosecution’s case to meaningful adversarial testing, or (3) where counsel is asked
to provide assistance in a circumstance where competent counsel could not.93
The Commissioner in her Commissioner’s Report did not find that
Cronic/Cooke applied to presume prejudice.94 Specifically, the Commissioner
stated there was nothing wrong with the trial strategy of conceding charges in a
defense counsel’s closing argument and the decision to do so did not trigger the
presumption of prejudice under Cronic/Cooke.95 She then applied the Strickland test
and found that Coleman could not satisfy either prong. 96
Coleman argues that his case falls under the second exception in Cronic: when
counsel fails to subject the prosecution’s case to meaningful adversarial testing.97
91
Cooke v. State, 977 A.2d 803, 848 (Del. 2009).
92
466 U.S. at 659.
93
U.S. v. Cronic, 466 U.S. 648, 659-60 (1984).
94
D.I. 59.
95
Id.96
Id.97
D.I. 63.
17
The Delaware Supreme Court has previously held in Cooke that certain fundamental
decisions, such as the right to plead guilty are left up to the defendant. 98 In Cooke,
the Delaware Supreme Court found that the defendant was deprived of meaningful
adversarial testing when defense counsel urged the jury to find the defendant guilty
but mentally ill despite the defendant’s continued desire to plead not guilty.99 The
Delaware Supreme Court found that the decision to plead guilty, innocent, or nollo
contendre is so profoundly important that for counsel to do so against a defendant’s
wishes constitutes a constitutional violation and, as a result, prejudice is presumed
in the Strickland analysis.
Notably, the decision to make everyday strategic tactical decisions rests with
the attorney.100 Strategic decisions made by an attorney fall within the purview of
Strickland and defendants must establish both the performance prong and the
prejudice prong.
Coleman’s case is similar to Florida v. Nixon, in which the United States
Supreme Court explained that “although defense counsel is obligated to discuss
potential strategies with the defendant, ‘when counsel informs the defendant of the
strategy counsel believes to be in the defendant’s best interest and the defendant is
unresponsive, counsel’s strategic choice is not impeded by any blanket rule
98
Cooke, 977 A.2d at 840-41.
99
Id.100
Id. at 840.
18
demanding the defendant’s explicit consent.’”101 In Nixon, defense counsel
explained his strategy to the defendant several times prior to trial and the defendant
did not say anything affirmative or negative regarding the proposed strategy. 102 The
United States Supreme Court held that the defendant’s silence was not enough to
trigger Cronic’s presumption of prejudice. 103 Specifically, the United States
Supreme Court cautioned, “[t]he reasonableness of counsel’s performance, after
consultation with the defendant yields no response, must be judged in accord with
the inquiry generally applicable to ineffective-assistance-of-counsel claims,” and
whether counsel’s conduct “fell below an objective standard of reasonableness.”104
In that context, the Court found that the case should be reviewed under Strickland.105
It is unquestionable that trial attorneys are allowed to use the strategy
employed here by Trial Counsel and does not necessarily implicate Cronic/Cooke.106
Cronic/Cooke applies in instances where an attorney has completely gone against
the wishes of their client and plead him guilty during trial on every charge. While
perhaps Trial Counsels’ strategy was fruitless, in reviewing these claims, the Court
101
543 U.S. at 192 (internal citations omitted) (emphasis in original).
102
Id. at 186.
103
Id.
104
Id. at 178 (emphasis added).
105
Id. at 179.
106
See Normal v. State, 2013 WL 6710794, at *3 (Del. Super. Dec. 17, 2013); State v. Johnson,
2002 WL 130537, at *6 (Del. Super. Jan. 31, 2002); State v. Morse, 2016 WL 3044734, at *5 (Del.
Super. May 11, 2016).
19
must “avoid peering through the lens of hindsight.”107 While Coleman may be
unhappy with the result or Trial Counsel’s defense of him, the implementation of a
strategy to concede to certain charges does not wholistically deprive Coleman of any
adversarial testing.
Under Cronic, “the adversarial process protected by the Sixth Amendment
requires the accused have counsel acting in the role of advocate.” 108 When Trial
Counsel fails to act in the role of advocate, a defendant’s case is deprived of the
opportunity to subject the State’s case to the “crucible of meaningful adversarial
testing.”109 Trial Counsel’s performance did not arise to such dereliction. He argued
against—and received an acquittal on—the Bicycle Use at Night Without Headlamp
charge.110 Further, while the implementation of Trial Counsel’s strategy was faulty,
he did argue that Coleman should not be convicted of the CCDW charge which
Coleman sought to fight at trial. As a result, Coleman was not deprived of
meaningful adversarial testing and the Court agrees with the Commissioner that
Strickland applies.
2. Trial Counsel’s Conduct was Objectively Unreasonable
The first prong in the Strickland analysis is whether Trial Counsel’s conduct
107
State v. Wright, 653 A.2d 288, 295 (Del. Super. 1994).
108
Cronic, 466 U.S. at 656.
109
Id.110
A373-74.
20
was objectively unreasonable. The Court finds that it was. Trial Counsel’s chosen
strategic path was objectively unreasonable in light of Coleman’s desire to go to
trial.
While strategic decisions rest within the purview of the attorney, the
discretion afforded to counsel is subject to some parameters. “Where deficiencies
in counsel’s performance are severe and cannot be categorized as the product of
strategic judgment, ineffectiveness may be clear.”111 The operative question here is
“not whether counsel’s choices were strategic, but whether they were reasonable.”112
Here, the execution of Trial Counsel’s strategy is what exceeds the bounds of
reasonableness. Trial Counsel conceded the only arguable elements of the CCDW
offense that could create a question of fact and chose to fight elements that
unequivocally pointed to guilt. When Coleman agreed to Trial Counsel’s proposed
strategy, he did so to fight the CCDW charge. In his Affidavit, Trial Counsel
explains, “It was my recommendation that the focus during closing argument should
be to attempt to obtain an acquittal with respect to the CCDW charge, particularly
given the perceived gap in evidence regarding the circumstances underlying the gun
charge.”113
Title 11 of the Delaware Code Section 1442 provides, “A person is guilty of
111
Workman v. Superintendent Albion SCI, 915 F.3d 928, 943 (3d Cir. 2019).
112
Roe v. Flores-Oretega, 528 U.S. 470, 481 (2000).
113
D.I. 80.
21
carrying a concealed deadly weapon when the person carries concealed a deadly
weapon upon or about the person without a license to do so . . . .” 114 Broken down,
this charge requires the prosecution to show four elements: (1) there was a deadly
weapon, (2) the defendant carried the weapon, (3) the weapon was concealed, and
(4) the defendant acted knowingly.115
Trial Counsel expressly conceded the first two elements, constructively
conceded the third, and misstated the fourth, despite Coleman’s desire to seek
acquittal on the charge. In his closing, Trial Counsel admits to the first element by
stating, “There is no argument that the weapon at issue was a firearm. You saw it.
There was testimony that it, in fact, had a magazine and ammunition. No question
that’s a firearm.”116 He admitted to the second element: “Did Mr. Coleman have
access to it somewhere on his person? Sure. Sure.”117
The jury then heard the third element: concealment. The jury instructions
included that “a weapon is concealed if it is so situated on or about the person
carrying it as not to be discernible by those who would come near enough to see it
in the usual associations of everyday life by ordinary observation,”118 but to police
officers, “a weapon may be concealed even though easily discoverable through
114
11 Del. C. § 1442.
115
A299-00.
116
A312.
117
A313.
118
A326.
22
routine police investigative techniques.”119 The State presented evidence that the
police officers did not see the firearm prior to the pat down.120 Rather than fighting
the State’s assertion, Trial Counsel argued, “There was testimony that when he ran
into the car, he fell to the ground. They did a pat down. It was somewhere on his
person. They found it.” 121 This argument conceded the third element.
Trial Counsel then moves on to the fourth element: the knowing state of mind.
He argued that the State must prove the firearm “was knowingly concealed. That is
to say, was Mr. Coleman knowingly attempting to hide from view by others a
weapon, a firearm? If Mr. Coleman was, as the State would have you believe, aware
that the police were chasing him—and we’ve conceded that he was—was it his
intention, was it his plan, to conceal the gun from view?” 122 He then proceeded to
say,
What’s, on its face, illegal about possessing a gun? . . . If he knows he’s
going to get caught with a gun and that has consequences for him, why
keep it on him? So, there are two issues I’d ask you to consider. Was
it actually concealed, knowingly concealed? You heard that it was
found around his waistband. But, was it on the outside? Was it thinly
disguised inside? Those are the questions you need to ask yourself . . .
And the second is did he knowingly conceal, or was it really the heroin
he was hoping to hide from the police?123
119
Id.
120
A205-06.
121
A313.
122
A313-14.
123
A314-15.
23
In defense of his closing argument, Trial Counsel explains:
Following the close of the State’s case-in-chief and following the
State’s closing argument, it was clear that the prosecution had not
established—let alone suggested—that the firearm that was found
within the clothing of Mr. Coleman’s person during a search incident
to arrest was unlawfully possessed or controlled. In particular, the State
did not introduce evidence or offer any argument during closing that
Mr. Coleman was a person prohibited from possessing a firearm. Nor
would the State have been permitted to do so. (As a notable aside, Mr.
Coleman—who had one or more prior felony convictions—elected not
to testify). Further, there was no evidence presented that Mr. Coleman
did not have a “concealed carry” license or other category of license
with respect to the firearm. Accordingly, it seemed logical to argue to
the jury that the gun was lawfully possessed. 124
There are multiple issues with the application of this strategy that make it
unreasonable. First, Trial Counsel misstates the law transforming the burden from
knowingly to intentionally with his statement, “[W]as it his intention, was it his plan,
to conceal the gun from view?”125 Second, his statement alludes to the fact Coleman
knew that he had a gun on his person—the requisite mental state—and it was not his
intention to hide it. His closing continued, arguing that Coleman did not throw away
the gun when being chased by the police, 126 ending with “[W]hat’s, on its face,
124
D.I. 80.
125
A313-14.
126
A314-15.
24
illegal about possessing a gun?”127 This rhetorical question presents a two-fold
problem. First, it essentially admits that Coleman knowingly had a gun. Second,
Trial Counsel attempts to attack concealment on the untenable basis that Coleman
legally possessed the gun.
Coleman’s trial was bifurcated with the person prohibited charges coming in
during the “B” case. 128 As such, the State was unable to introduce Coleman’s prior
felony conviction without substantial prejudice to Coleman in the “A” case.129 Trial
Counsel knew that Coleman was a person prohibited.130 By arguing that Coleman
was in legal possession of the gun, Trial Counsel opened the door for the State to
introduce Coleman’s prior conviction to show that he was a person prohibited.
While the State did not choose to do so, Trial Counsel staked his position on a
refutable argument, thus toeing the line of malpractice by utilizing the trial’s
bifurcated barrier to serve his indefensible argument. Expressly and constructively
conceding all four elements to the CCDW charge cannot be objectively reasonable.
Nor could it have been within the bounds of a reasonable strategy to fight the CCDW
charge by conceding the elements of the offense. Hence, the Court finds that Trial
Counsel was objectively unreasonable in the application of his strategy in defense
127
A314.
128
D.I. 26.
129
Id.
130
A314; D.I. 80.
25
of Coleman.
3. Coleman is Unable to Show Prejudice
The second prong in the Strickland analysis is that the defendant must show
actual prejudice.131 This is typically the factor upon which defendants fall short on
their IAC claims. To establish prejudice, a defendant must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”132 “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”133 The defendant must “make
concrete allegations of actual prejudice and substantiate them or risk summary
dismissal.” 134
Coleman cannot establish prejudice because he cannot show that absent Trial
Counsel’s errors, the result of the trial would have been different. The State brought
a strong case against Coleman. For CCDW, there was a solid record replete with
overwhelming evidence upon which to find Coleman guilty. The officers testified
and readily established that (1) the firearm was a deadly weapon, (2) the firearm was
found on Coleman’s person, (3) officers were unable to see the gun in the waistband
of Coleman’s pants until they performed a pat down, and (4) he knowingly possessed
131
Strickland, 466 U.S. at 668.
132
Id. at 694.
133
Id. at 693-94.
134
Outten v. State, 720 A.2d 547, 557 (Del. 1998).
26
the gun by repeatedly reaching for the waistband of his pants while he was
attempting to ride away on his bicycle.135 For the Resisting Arrest charge, the State
presented evidence that officers with clearly discernable police attire directed
Coleman to stop, but he did not.136 Instead, he rode his bicycle away and attempted
to jump a curb from the street in order to evade officers. Officers had to deploy a
taser and wrestle him to the ground in order to effectuate an arrest.137 For possession,
the State presented evidence that the heroin was in Coleman’s possession; it was
found in the back of the police car, and no one else had been in the rear of the car
except for Coleman.138 Therefore, even without Counsel’s errors, the State provided
a strong enough case that a jury would likely have reached the same result, even
without Trial Counsel’s errors.139
The Court finds that under Strickland, Coleman is unable to show prejudice
and thus, his postconviction motion must be DENIED.
CONCLUSION
Coleman was not deprived of meaningful adversarial testing when Trial
Counsel employed the strategy of conceding guilt to two of the charges in his closing
135
A299-302.
136
Id.137
Id.138
Id.139
Moreover, even though Trial Counsel conceded guilt on the heroin and resisting arrest charges,
the jury acquitted Coleman. Hence, no prejudice can be claimed as to those charges.
27
statement. Therefore, the Strickland test applies, and while Trial Counsel is found
to be objectively unreasonable for conceding all the elements of the CCDW charge
for which Coleman sought acquittal, Coleman is unable to establish the prejudice
prong. For these reasons, the Commissioner’s Report and Recommendation is
ACCEPTED and Coleman’s Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED, this 15th day of July, 2024.
_________________ ________
Sheldon K. Rennie, Judge
Original to Prothonotary
28