STATE v. GARDEN, 9912015068 (Del.Super. 5-16-2011)

STATE OF DELAWARE v. SADIKI J. GARDEN, Defendant.

I.D. No. 9912015068.Superior Court of Delaware, New Castle County.Submitted: March 15, 2011.
Decided: May 16, 2011.

Upon Defendant’s Motion for Postconviction Relief. DENIED.

Elizabeth R. McFarlan, Esquire and James T. Wakley, Esquire, Deputy Attorneys General, Department of Justice, Wilmington, Delaware, Attorneys for the State.

Jennifer-Kate Aaronson, Esquire and Patrick J. Collins, Esquire, Aaronson, Collins Jennings, LLC, Wilmington, Delaware, Attorneys for Defendant.

ORDER
COOCH, R.J.

This 16th day of May 2011, upon consideration of Defendant’s motion for postconviction relief, it appears to the Court that:

1. Defendant Sadiki J. Garden (“Defendant”) has filed this motion for postconviction relief on the grounds of ineffective assistance of counsel and

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violation of his due process rights based on “irrelevant and unduly prejudicial” evidence at trial.[1]

2. A jury found Defendant guilty of two counts of Capital Murder First Degree (both intentional murder and felony murder), Possession of a Firearm During the Commission of a Felony, Attempted Robbery First Degree, Possession of a Deadly Weapon by a Person Prohibited, Conspiracy Second Degree, and two counts of Unlawful Use of a Credit Card; these convictions arose from Defendant’s roles, together with two accomplices, in thefts and robbery on December 17, 1999 and in the attempted robbery and murder of Denise Rhudy on December 18, 1999.[2] During the capital sentencing phase of Defendant’s trial, the jury found that the aggravating circumstances did not outweigh the mitigating circumstances; the jury’s vote was 10-2 with respect to Count I (intentional murder) and 9-3 with respect to Count II (felony murder), thereby recommending that Defendant receive a sentence of life without parole.[3]
However, this Court held that the jury’s vote was “advisory,” rather than binding.[4] This Court observed that Defendant chose to commit a “random murder,” for which there were no mitigating circumstances, and that Defendant exhibited an “utter lack of remorse,” an aggravating factor.[5] After independently weighing each aggravating and mitigating factor, this Court imposed a sentence of death.[6]

3. The Supreme Court of Delaware reversed Defendant’s sentence, holding that the trial judge did not afford the jury’s vote the requisite “great weight,” and the matter was remanded to allow this Court to re-sentence

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Defendant in accordance with the standards articulated in the Supreme Court’s holding.[7]

4. On remand, this Court reviewed the aggravating and mitigating factors and found that there was no reasonable basis to conclude that the aggravating factors did not outweigh the mitigating factors.[8] Accordingly, this Court again imposed a sentence of death.[9]

5. Defendant appealed his sentence, and the Supreme Court again reversed.[10] The Supreme Court held that, under the then-applicable statute, “the jury’s recommendation must be respected if it is supported by the record and is not irrational.”[11] Consequently, the Supreme Court remanded Defendant’s case for the imposition of a sentence of life imprisonment without the possibility of parole.[12]

6. On December 18, 2006 Defendant filed, pro se, his first motion for postconviction relief.[13] In this motion, Defendant alleged that his trial counsel was ineffective for: 1) failing to argue against the joinder of the Possession of a Deadly Weapon by a Person Prohibited count with the other charges; 2) failing to object to certain statements made by the trial court

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during an office conference regarding Defendant’s allocution;[14]
3) failing to conduct an adequate pretrial investigation of the crime scene; 4) failing to object to his co-defendant’s allegedly perjured § 3507[15] testimony; 5) failing to object to the admission of certain handwritten letters at the evidentiary hearing, or seek a handwriting expert; 6) allegedly prohibiting Defendant from testifying during his trial; 7) failing to argue that Defendant’s statements to the police should be suppressed due to Miranda violations; and 8) failing to argue against the admissibility of evidence seized pursuant to a search warrant for Defendant’s two residences.[16] This Court found that all of Defendant’s alleged grounds for relief were without merit and, accordingly, denied Defendant’s motion for postconviction relief.[17]

7. Defendant appealed the denial of his motion for postconviction relief to the Supreme Court.[18] On this appeal, Defendant argued inter alia, that the trial judge had abused his discretion in ruling on the ineffective assistance of counsel claims without first obtaining a response to the allegations from Defendant’s trial counsel.[19] The Supreme Court held that, “[w]hile ultimately the Court may find no merit on appeal to [Defendant’s] allegations of ineffectiveness,” given that Defendant’s first motion for postconviction relief is his “first and best opportunity” to raise ineffective assistance of counsel claims, the interests of justice required a fuller expansion of the record.[20] Thus, the Supreme Court remanded Defendant’s case to this Court “so that [Defendant], with the assistance of appointed counsel, may have the opportunity to expand on the allegations raised in this

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appeal and so defense counsel, as well as the State, may have the opportunity to address Garden’s allegations.”[21]

8. In his amended motion for postconviction relief, filed August 12, 2010, Defendant alleges four grounds for, relief, as follows:

1) Trial counsel were ineffective for failing to request a Bland instruction with respect to his accomplices’ testimony.
2) Defendant’s rights to due process and a fair trial were violated by the prosecution’s “injection of irrelevant and unduly prejudicial evidence and arguments related to [Defendant’s] economic status as evidence of motive and identity,” and appellate counsel was ineffective for failing to raise this issue on appeal.
3) Trial counsel were ineffective for failing to move to sever the Possession of a Deadly Weapon by a Person Prohibited count.
4) Trial counsel were ineffective for failing to object to the admissibility of Defendant’s accomplices § 3507 statements and transcripts.[22]

9. This Court appointed Jennifer-Kate Aaronson and Patrick J. Collins to represent Defendant. Defendant’s trial and appellate counsel, Brian J. Bartley, Aaron R. Goldstein, Timothy J. Weiler, and Bernard O’Donnell, filed a joint affidavit responding to Defendant’s allegations; this affidavit stated as follows:

1. At all times relevant to the allegations in the Motion, Counsel were attorneys in the Office of the Public Defender and are members of the bar [of] the State of Delaware. Counsel were appointed to represent Defendant in a capital murder trial docketed as Case No. 9912015068.

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2. Affiants were directed to submit in response to Defendant’s allegation of ineffective assistance of counsel in the above-captioned matter.
3. The trial in this matter took place in January and February of 2001.
4. Because this matter was tried almost ten years ago, the trial counsel affiants have only a vague independent recollection of the conduct of Defendant’s trial and penalty hearing. [Affiants] have refrained from any attempt to speculate as to the conduct of the trial in this matter or the strategic decisions that guided counsel during the defense of this matter.
5. In an effort to refresh our recollection, trial counsel have conducted the following actions:
a) affiants have reviewed the allegations of the Defendant and the arguments of the State relating to Defendants Rule 61 Application;
b) affiants have conferred and discussed the allegations and the relevant citations to the record;
c) trial counsel affiants have conducted a thorough review of the client file, trial preparation materials, filed motions, trial notes, and transcripts of the proceeding as provided by Defendant’s current counsel; and
d) affiants have engaged in their best efforts to recollect the events that have given rise to Defendant’s allegations.
6. Section I of defendant’s post-conviction motion alleges that trial counsel was ineffective because they failed to request a Bland
instruction. Specifically counsel responds as follows:
Admitted that counsel did not request a Bland instruction. At this time Counsel cannot recall why a Bland instruction was not requested.
7. Section II of defendant’s postconviction motion alleges Appellate counsel was ineffective for failing to raise on appeal the prosecutor’s introduction of irrelevant and unduly prejudicial evidence and arguments related to

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[Defendant’s] economic status as evidence of motive and identity. Specifically counsel responds as follows:
It is admitted that this issue was not raised on appeal by appellate counsel. Counsel cannot recall now whether this was due to oversight or whether counsel considered it as an issue to raise on appeal but decided as a matter of strategy not to raise it relative to the other issues that were argued on appeal.
8. Section III of defendant’s postconviction motion alleges Trial Counsel was ineffective for failing to move to Sever Count XVI of the indictment charging Possession of a Deadly Weapon by a Person Prohibited. Specifically counsel responds as follows:
Trial Counsel did move to sever those charges relating to the December 17 allegations from the December 18 allegations which was denied by the Trial Court on November 1, 2000. See Dkt. Item 42; Garden v. State, 2000 WL 33114325 (Del. Super. Ct.). Counsel did not move to sever the possession of a deadly weapon by a person prohibited charge and does not recall why counsel did not move to sever the charge.
9. Section IV of defendant’s postconviction motion alleges Trial Counsel was ineffective for failing to object to the admissibility of [Defendant’s accomplices’] 3507 statements and transcripts. Specifically counsel responds as follows:
Admitted that Trial Counsel did not object to the admissibility of [Defendant’s codefendants’] 3507 statements and transcripts. Counsel do not recall whether they believed that there was sufficient basis for an objection or whether they chose not to object to the voluntariness of the statements for tactical reasons.[23]

The Court will address Defendant’s claims in turn.

10. Defendant’s claims of ineffective assistance of counsel are governed by the United States Supreme Court’s decision i Strickland v. Washington.[24]

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Under Strickland, Defendant bears the burden of proof in meeting a two-prong test: that counsel’s efforts “fell below an objective standard of reasonableness” and that, but for counsel’s alleged error, there was a reasonable probability that the outcome would have been different; a “reasonable probability” is defined as “a probability sufficient to undermine confidence in the outcome.[25] The second prong requires a defendant to show that trial counsel’s alleged error was prejudicial, and “the burden is on the defendant to make concrete and substantiated allegations of prejudice.”[26]

Further, to prevail on a claim of ineffective assistance of counsel, Defendant must “overcome the strong presumption that his counsel’s representation was professionally reasonable.”[27] The Court will evaluate trial from counsel’s perspective at the time of trial to avoid “the distorting effects of hindsight.”[28]
Similarly, a Court “cannot require defense counsel to choose one particular defense strategy over any other strategy that falls within the `wide range of professionally competent assistance.'”[29]

The Accomplice Testimony Jury Instruction Issue
11. Defendant alleges that trial counsel were ineffective for failing to request a Bland[30] instruction regarding Defendant’s accomplices’ testimony.[31] Defendant’s accomplices, James Hollis and Christopher Johnson, implicated Defendant as the perpetrator of Denise Rhudy’s murder.[32] Defendant notes that Johnson was a convicted felon, on escape status and eligible to be sentenced as an habitual offender, and Hollis was aware of Johnson’s escape status, but nonetheless continued to associate with Johnson.[33] Further, Defendant notes that Hollis and Johnson had been friends and frequent companions in the months leading to the instant robbery

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and murder, whereas Hollis first met Defendant two days prior to the instant robbery and murder, and that Johnson had not had contact with Defendant for “at least six months” prior to the instant robbery and murder.[34]

Defendant’s trial counsel conceded that a Bland instruction was not requested, although they could not recall the reason for this.[35] However, Defendant’s trial counsel did request specific jury instructions regarding accomplice testimony proffered under a grant of immunity or in fulfillment of a plea agreement with the State.[36] The trial judge denied trial counsel’s requests, holding that such instructions would be impermissible comments on the evidence, in violation of the Delaware Constitution.[37]

In Bland v. State, the Supreme Court of Delaware endorsed the following jury instruction regarding uncorroborated accomplice testimony:

A portion of the evidence presented by the State is the testimony of admitted participants in the crime with which these defendants are charged. For obvious reasons, the testimony of an alleged accomplice should be examined by you with suspicion and great caution. This rule becomes particularly important when there is nothing in the evidence, direct or circumstantial, to corroborate the alleged accomplices’ accusation that these defendants participated in the crime. Without such corroboration, you should not find the defendants guilty unless, after careful examination of the alleged accomplices’ testimony, you are satisfied beyond a reasonable doubt that it is true and that you may safely rely upon it. Of course, if you are so satisfied, you would be justified in relying upon it, despite the lack of corroboration, and in finding the defendants guilty.[38]

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Defendant asserts that the lack of a Bland instruction constituted ineffective assistance of counsel, as defined b Strickland v. Washington, [39] and that this deficient performance was prejudicial, thereby entitling him to a new trial.[40]

In 2010, the Supreme Court of Delaware addressed this issue i Smith v. State.[41] In Smith, “the outcome of [the defendant’s] trial turned on the credibility of [the defendant] versus the credibility of [defendant’s accomplice and another eyewitness].”[42] The Court found that, under the facts presented, trial counsel’s failure to request a Bland satisfied the two-prong test for ineffective assistance of counsel, as defined b Strickland, supra.[43]

The continuing applicability of Bland has been “reaffirmed numerous times over the past 40 years.”[44] Indeed, th Smith Court stated that the current “best practice is to give the Bland instruction on accomplice liability rather than the [accomplice credibility] pattern jury instruction given in [Bordley v. State, 832 A.2d 1250 (Del. 2010)].”[45] A general credibility instruction is insufficient to “cure” the omission of a specific instruction on accomplice credibility, if an accomplice credibility instruction is otherwise warranted.[46]

Although the Smith Court broadly held that when an accomplice’s “uncorroborated testimony [is] central to the State’s case,” trial counsel’s failure to request a “Bland-type” instruction is “`deficient attorney performance[]’ under the first part of [the] Strickland analysis,”[47] it remains

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that such failure must also be prejudicial to Defendant, pursuant t Strickland.[48] In Smith, the Supreme Court found that trial counsel’s failure to request such an instruction was prejudicial, but, in Smith, the jury’s verdict turned on the credibility of uncorroborated accomplice testimony, which “should be subjected to enhanced scrutiny.”[49] Conversely, in this case the State presented physical evidence and eyewitness testimony that corroborated Defendant’s accomplices’ testimony; as noted by the State, John Weilbacker, a friend of murder victim Denise Rhudy and eyewitness to the murder, testified at trial and identified Defendant as the shooter.[50] Likewise, Stephanie Krueck, another friend of the victim and eyewitness to the murder, identified Defendant as the shooter; Weilbacker and Krueck were “90%” and “100%” certain of Defendant’s identity as the shooter, respectively.[51] Finally, the State presented significant physical and circumstantial evidence, such as clothing seized from Defendant’s residence that matched witnesses’ descriptions and Garden’s ownership of the vehicle used by Defendant and his accomplices when fleeing the scene of the murder.[52] Thus, although Defendant’s accomplices’ testimony was no doubt helpful to the State, such testimony was not the “linchpin” of the State’s case;[53] the outcome of Defendant’s trial did not turn on the credibility his accomplices’ testimony.

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Although, under Smith, trial counsel’s failure to request Bland instruction is per se deficient performance, [54]
it is not per se prejudicial; rather, “[t]he prejudicial effect depends upon the facts and circumstances of each particular case.”[55] While it is true that the first prong o Strickland is

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likely satisfied based on the Supreme Court of Delaware’s holding and rationale in Smith, [56] there was sufficient independent, corroborating evidence presented at trial such that Defendant is unable to satisfy the second “prejudice” prong o Strickland. Accordingly, this claim for relief fails.

Economic Status as Evidence of Motive and IdentityIssue
12. Defendant asserts that the State introduced several past due bills to support its theory that Defendant’s motive for committing the robbery was his financial situation.[57] Likewise, the State’s closing argument included assertions that Defendant “needed the money” and “clearly had a motive to rob.”[58] At that time, trial counsel objected to the presentation of this evidence on grounds of relevance.[59] In his instant motion, Defendant contends that this evidence was “calculated to appeal to the jury’s economic prejudices and mislead the jury as to the inferences it may draw.”[60]
Defendant asserts that the introduction of this evidence “violated [his] due process rights and the right to a fair trial.”[61]
Further, Defendant alleges that appellate counsel was ineffective for failing to raise this issue on appeal.[62] To the extent the State contends that this claim is procedurally barred, Defendant responds that this argument raises a “colorable” claim premised upon a “miscarriage of justice because of a constitutional violation that

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undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction,” thereby bringing this claim within the “fundamental fairness” exception of Superior Court Criminal Rule 61(i)(5).

The State contends that this ground for relief was not raised before this Court or the Supreme Court of Delaware and, consequently, that it is barred by Rule 61(i)(3).[63] The State notes that Defendant’s unsuccessful objection to the introduction of his past due bills was predicated on relevance, rather than the purported prejudicial effect of such evidence.[64] Thus, according to the State, Defendant’s current grounds for objecting to this evidence were not presented at trial or on direct appeal and are now procedurally barred.[65]

Similarly, the State contends that Defendant’s allegation of ineffective assistance of appellate counsel must fail because, given that Defendant did not object to this evidence on the grounds he now advances, appellate counsel could only advance this argument under the highly demanding “plain error” standard of appellate review.[66] The State argues that the “exacting” requirements for reversal under the “plain error” standard could not be met in this case; thus, appellate counsel can not be considered to have erred in failing to raise this claim on direct appeal.[67]

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Appellate counsel is unable to recall whether this issue was intentionally omitted, as a strategic decision, or if it was simply an oversight.[68] To the extent it was a strategic decision, such omission cannot be considered to be ineffective assistance; to the contrary, “[a] strategy, which structures appellate arguments on `those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.'”[69]

On the other hand, if appellate counsel omitted this argument due to oversight, Defendant nonetheless must establish prejudice from such omission.[70] The record discloses (and Defendant apparently does not dispute) that trial counsel objected based on relevancy, an issue controlled by D.R.E. 401, rather than prejudice, an issue controlled by the distinct standards of D.R.E. 403. Thus, a question arises as to whether trial counsel’s relevancy objection adequately preserved Defendant’s instant objection based on D.R.E. 403.

Generally, an objection is waived on appeal if the contemporaneous trial objection was premised on different grounds.[71] However, in the specific context of prejudicial evidence and alleged prosecutorial misconduct, the Supreme Court has been somewhat indeterminate:

Here, defense counsel at least raised a misfocused objection on relevance grounds, that arguably triggered an analysis of whether the prosecutor’s question caused unfair prejudice under D.R.E. 403. . . . The State contends that because the objection was misfocused, because defense counsel did not specifically argue that

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the prosecutor did not have a good faith factual predicate for his question, and (presumably) because the trial judge did not sua sponte
consider this issue, we may review only for plain error. But, we need not quibble over whether defense counsel’s misfocused objection triggered harmless or plain error review. We have concluded that the prosecutorial misconduct warrants reversal under the plain error standard of review.[72]

The State contends that, even if the issue had been asserted by appellate counsel on direct appeal, the prosecutorial misconduct and prejudicial grounds now alleged by Defendant were waived and, as a result, would have been held to the “plain error” standard of review.[73] This standard “places the burden on the defendant of demonstrating that trial counsel’s oversight resulted in an error that was `so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process.'”[74]
However, as the foregoing language from Baker discloses, it is not clear whether trial counsel’s objection based on relevance sufficiently preserved Defendant’s right to subsequently amplify his objection to include allegations of prejudice.

Ultimately, the issue of whether Defendant waived his objection premised on prejudice and prosecutorial misconduct is of no consequence; assuming, without deciding, that trial counsel’s relevancy objection sufficiently preserved Defendant’s instant objection, this Court nonetheless finds that any alleged error was harmless. In reaching this conclusion, this Court has considered the potential prejudice to Defendant and the purported probative value of the economic status evidence.[75]

The Supreme Court of Delaware has not pronounced a per se
prohibition on the introduction of a defendant’s economic status; instead,

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such evidence must be “carefully” weighed by the trial court and subject to the balancing analysis of D.R.E. 403.[76] Similarly, the prosecuting attorney’s comments during closing argument must be viewed against the standard for prosecutorial misconduct; the Court must first determine if there was any misconduct, and, if so, “consider `the closeness of the case, the centrality of the issue affected by the (alleged) error, and the steps taken to mitigate the effects of the error.'”[77] Finally, the Court must consider whether the prosecuting attorney’s comment was “part of a persistent pattern of misconduct.”[78]

The Supreme Court recently affirmed a defendant’s conviction for First Degree Murder (and related offenses), notwithstanding the prosecuting attorney’s comments that the defendant’s expert was “bought and paid for.”[79] In Erskine v. State, the Supreme Court noted that, although this attack on the defendant’s expert’s credibility was harmful to the defendant’s claim of duress, “most, if not all” critical facts underlying the defendant’s conviction were confirmed by other witnesses, a curative instruction was given, and the comment was not part of a “pattern of misconduct.”[80]
Thus, although the Court found the prosecuting attorney’s comments to be “beyond the range of acceptable argument,” such error was harmless beyond a reasonable doubt.[81]

This Court likewise finds that the prosecuting attorney’s comments during closing argument, and, to a lesser extent, the introduction of Defendant’s overdue bills, were inappropriate, but that such error was harmless. This was not a “close” case before the jury;[82] as stated there was

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eyewitness testimony identifying Defendant as the shooter and Defendant’s vehicle as the vehicle used by the perpetrators to flee the scene. Thus, not surprisingly, the Supreme Court of Delaware previously noted that the identification of Defendant as the shooter was not “close” before the jury; the Supreme Court has stated:

More importantly, the issue of identification was not a close one. The emphatic identification of [Defendant] by the victim was corroborated by codefendants Hollis and Johnson whose testimony is consistent with other objective evidence in the case, such as the videotape evidence.[83]

Similarly, the Supreme Court acknowledged the “considerable” evidence presented by the state and the “emphatic” identifications by the eyewitnesses, separate and apart from Defendant’s accomplices’ testimony.[84] Rather, there was significant physical evidence, eyewitness testimony, and circumstantial evidence supporting the jury’s verdict. Therefore, while the State’s introduction of evidence of Defendant’s financial status and the prosecuting attorney’s remarks were improper, this did not deprive Defendant of his right to a fair trial.

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Given this Court’s determination that any error on this issue was harmless, it necessarily follows that these claims could not survive the demanding standard imposed by plain error review.[85] Thus, under either potentially applicable standard of appellate review, these claims would fail. In turn, Defendant’s claim of ineffective assistance of appellate counsel must fail, because Defendant cannot establish that, but for appellate counsel’s alleged errors, the result of his direct appeal would have been different.[86]

Failure to Move to Sever Count XVI of theIndictment
13. In Defendant’s Amended Motion, he asserts that trial counsel’s failure to move to sever the charge of Possession of a Deadly Weapon by a Person Prohibited resulted in a violation of his due process rights and his right to a fair trial.[87] Based on the joinder of this charge, trial counsel entered a stipulation in which the jury was informed that Defendant was prohibited from possessing a deadly weapon due to his prior conviction of felony Receiving Stolen Property.[88]

However, Defendant’s Reply Brief abandons these contentions, conceding that trial counsel did in fact move to sever this charge.[89] Instead, Defendant has narrowed his assertions on this point to appellate counsel’s alleged ineffectiveness in failing to raise this issue on appeal, and trial counsel’s decision to enter a stipulation which disclosed the name of Defendant’s prior felony conviction, instead of a stipulation that merely identified Defendant as a prohibited person.[90]

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Counsels’ joint affidavit does not disclose the reason that this issue was not raised on direct appeal. However, the trial record discloses that trial counsel’s conduct was not ineffective, and, consequently, there was no viable issue for appellate counsel to argue. Specifically, the instant stipulation was the product of a calculated, strategic analysis by trial counsel; given the denial of Defendant’s motion to sever this charge, trial counsel adapted their tactic and requested that the stipulation indicate that Defendant’s conviction was for the offense of Receiving Stolen Property.[91]
Trial counsel made this request in an attempt to cast Defendant’s prior conviction in a “more positive,” and, presumably, more benign, light as compared to the jury simply being informed that Defendant was previously convicted of an unspecified felony.[92] This deliberate strategy certainly “falls within the `wide range of professionally competent assistance'”[93] and cannot be deemed ineffective.[94]

Moreover, as noted by the State, Defendant’s acquittal on the charge of attempted murder belies any claim of prejudice before the jury.[95] That is, if the disclosure of Defendant’s prior conviction caused the jury to infer a

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general criminal disposition, he would more likely have been convicted on all counts; instead, he was acquitted on the charge of attempted murder.[96]

With respect to appellate counsel’s failure to raise this issue on appeal, the Supreme Court would review the denial of Defendant’s motion to sever only for an abuse of discretion.[97] Defendant would have borne the burden of demonstrating actual, not merely hypothetical, prejudice resulting from the joinder of the Possession of a Deadly Weapon by a Person Prohibited Charge.[98]

Significantly, appellate counsel did appeal the trial court’s denial of Defendant’s motion to sever the charges arising from Defendant’s participation in a similar armed robbery the day before he committed the murder, and the Supreme Court rejected Defendant’s contentions.[99] While the Possession of a Deadly Weapon by a Person Prohibited charge was not at issue on appeal, it is important to note the Supreme Court’s determination that the jury was able to separately evaluate each charge, especially given that it acquitted Defendant of the attempted murder charge.[100]

Further, to the extent that Defendant claims that, had the motion to sever the Possession of a Deadly Weapon by a Person Prohibited charge been granted, he would have conducted his defense differently and testified in his defense, this purely hypothetical claim of prejudice is not credible. The Supreme Court observed that Defendant’s inconsistent statements and falsehoods about his participation in the previous day’s robbery would have been admissible in any separate murder trial for purposes of impeachment

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should he testify;[101] this possibility of impeachment is a far more compelling deterrent to Defendant testifying in his defense, and would have existed regardless of whether the Possession of a Deadly Weapon by a Person Prohibited charge was severed. Thus, Defendant would have been unable to demonstrate prejudice resulting from this Court’s denial of his motion to sever the charge of Possession of a Deadly Weapon by a Person Prohibited, a prerequisite to a successful appeal on this issue.[102] Given that this alleged error would not have been reversed by the Supreme Court, it necessarily follows that Defendant cannot show prejudice from appellate counsel’s failure to raise this issue on direct appeal. Consequently, Defendant has failed to satisf Strickland, and this ground for relief fails.[103]

Failure to Object toAccomplices’ § 3507 Statements and Transcripts
14. Defendant’s fourth and final ground for relief is trial counsels’ alleged ineffectiveness in failing to object to Defendant’s accomplices’ out-of-court statements, admitted pursuant to 11 Del. C. § 3507.[104] Under § 3507(a), the voluntary, prior out-of-court statements of a witness are admissible as affirmative evidence, with independent substantive value, provided that such witness is present at trial and subject to cross-examination. Defendant notes that, under Supreme Court decisional law, the offering party must establish the voluntariness of the out-of-court statement before such statement may be introduced.[105] Defendant asserts that the State never established the voluntariness of James Hollis’ § 3507 statement, and Christopher Johnson actively disputed the voluntariness of his § 3507 statement.[106]

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The State contends that the voluntariness of Hollis’ statement was adequately established by his testimony that he had provided the videotaped statement as part of his plea agreement, thereby undermining any basis on which trial counsel could have objected to the voluntariness of this statement.[107] Alternatively, the State asserts that, even if trial counsel did err in failing to object to Hollis’ § 3507 statements, Defendant cannot establish prejudice because Hollis testified fully at trial about the robberies and murder, thereby rendering his § 3507 statement, “at worst,” cumulative to his trial testimony.[108]

With respect to Hollis’ § 3507 statement, Hollis’ acknowledgement that the statement was offered as part of his voluntarily entered plea agreement inherently encompasses his representation that such statement was voluntary. Thus, trial counsel had no basis for objecting to Hollis’ § 3507 statement as involuntary; it necessarily follows that appellate counsel cannot be considered ineffective for omitting this issue on direct appeal.

Likewise, even if the admission of Hollis’ § 3507 statements had been error, Defendant could not show prejudice. Hollis testified consistently at Defendant’s trial and was available for cross-examination; his § 3507 statement may have reinforced this testimony, but, ultimately, the jury was presented with Hollis’ live testimony, including a full and fair opportunity for Defendant to cross-examine Hollis. Under these circumstances, Defendant cannot carry the burden of establishing “concrete and substantiated allegations of prejudice.”[109]

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With respect to Johnson, he testified that his § 3507 statement was voluntarily given.[110] To the extent that Defendant relies on the seemingly forged letter of recantation, purportedly authored by Johnson, as a basis for his allegation of ineffective assistance of appellate counsel, this issue was fully addressed in Defendant’s motion for a new trial. As stated, Defendant had a full and fair opportunity to explore this issue at an evidentiary hearing on his motion for a new trial; at this hearing, Johnson disclaimed authorship of the letter of recantation, and the trial judge concluded that Defendant was not entitled to a new trial. The Supreme Court of Delaware affirmed this decision; indeed, on appeal, Defendant also challenged the impartiality of the trial judge in ruling on this motion for a new trial, alleging that the trial judge erroneously denied his motion to recuse himself from deciding the motion.[111] The Supreme Court rejected this contention, finding “no basis for attributing either bias or the appearance of bias to the judge’s subsequent handling of the motion for a new trial.”[112] It follows that Defendant’s motion for a new trial, predicated on the inconsistencies contained in the apparently forged letter from Johnson, was fairly and impartially considered by the trial judge, and subsequently considered by the Supreme Court. Thus, there was no conceivable deficiency in either trial or appellate counsel’s performance on this point.

15. Therefore, for the reasons stated above, Defendant has failed to satisfy the Strickland test for ineffective assistance of counsel. It follows that Defendant’s motion for postconviction relief is DENIED.
IT IS SO ORDERED.

[1] Def.’s Amended Mot. for Postconviction Relief of Aug. 12, 2010 at 10-23.

[2] Id. at 1-2.

[3] State v. Garden, 792 A.2d 1025, 1028 (Del. Super. Ct. 2001).

[4] Id. at 1030 (“In close and difficult cases, it should guide the trial judge to a sentence consistent with the verdict. But it is not a shackle to inhibit the Court from the independent exercise of the duty imposed on it by law.”).

[5] Id. at 1032-33.

[6] Id. at 1036 (“The mitigating circumstances proved by the defendant are insubstantial by comparison. They show only a modest ability to function normally in the community. The ability to hold a job and to enjoy the love of family are foundational characteristics which cannot outweigh a fundamental disregard for life. The Court will impose a sentence of death.”).

[7] Garden v. State, 815 A.2d 327, 345 (Del. 2003) (“To the extent that the trial judge’s imposition of the death sentence failed to give appropriate consideration to the jury’s statutory function it is REVERSED. Since the jury correctly performed its role there is no need for a further sentencing hearing. Indeed, the appellant lodges no objection to the jury’s findings and recommendations. This matter must be remanded, however, to the Superior Court to permit that court to perform its statutory role as the ultimate sentencer, within the standards announced in this decision.”).

[8] State v. Garden, 831 A.2d 352 (Del. Super. Ct. 2003).

[9] Id. at 365 (“As ultimately framed, the question before the Court is . . . whether there is a reasonable basis in the record to support the conclusion that aggravating factors do not outweigh mitigating factors. The Court’s conclusion is that there is not. The aggravating factors in this case are substantial and are supported not only by logic and common sense but by the public policy of this State. The mitigating factors are ephemeral in comparison. The Court will re-impose a sentence of death.”).

[10] Garden v. State, 844 A.2d 311 (Del. 2004).

[11] Id. at 318.

[12] Id.

[13] State v. Garden, 2009 WL 147022 (Del. Super. Ct. 2009).

[14] This Court notes that any such failure to object to statements made in an office conference regarding allocution is of no consequence given that its only conceivable relevance is to Defendant’s sentencing; Defendant’s death sentence was reversed, and he thereafter received a life sentence, the only applicable sentence to his First Degree Murder conviction.

[15] 11 Del. C. § 3507(a) (“In a criminal prosecution, the voluntary out-of-court prior statement of a witness who is present and subject to cross-examination may be used as affirmative evidence with substantive independent testimonial value.”).

[16] State v. Garden, 2009 WL 147022, *2-6 (Del. Super. Ct. 2009).

[17] Id. at *6.

[18] Garden v. State, 979 A.2d 1110 (Del. 2009).

[19] Id. at *1.

[20] Id. at *2.

[21] Id. The Supreme Court also directed that, on remand, this case be assigned to a different judge of this Court Id. (“We have no doubt that the trial judge could reconsider this matter fairly and impartially. Given the nature of Garden’s arguments, the need for appointed counsel to review the earlier proceedings, and the impending expiration of the trial judge’s term, we conclude, in the interests of justice, that this matter should be assigned to a different Superior Court judge for reconsideration of [Defendant’s] postconviction motion.”).

[22] Def.’s Amended Mot. for Postconviction Relief of Aug. 12, 2010 at 10-23.

[23] Joint Affidavit of Brian J. Bartley, Esquire, Aaron R. Goldstein, Esquire, Timothy J. Weiler, Esquire and Bernard O’Donnell, Esquire at 1-3 [hereinafter “Aff. at ___”].

[24] 466 U.S. 668 (1984).

[25] Id. at 669.

[26] Richardson v. State, 3 A.3d 233, 240 (Del. 2010) (citations omitted).

[27] Gattis v. State, 697 A.2d 1174, 1178 (Del. 1997).

[28] Id. (citation omitted).

[29] Oliver v. Wainwright, 795 F.2d 1524, 1531 (11th Cir. 1987) (quoting Strickland, 466 U.S. at 688-89).

[30] Bland v. State, 263 A.2d 286 (Del. 1970).

[31] Def.’s Amended Mot. for Postconviction Relief at 10.

[32] Id. at 8.

[33] Id.

[34] Id. at 9.

[35] Aff. ¶ 6.

[36] State’s Answ. Br. at 6.

[37] Id. Notably, in denying Defendant’s requested accomplice testimony instructions, the trial judge sua sponte raised the possibility of a Bland instruction, despite his apparent misgivings about such an instruction. See Trial Transcript of Feb. 5, 2001 at 20 (“There’s another accomplice testimony instruction floating around. Nobody’s requested it. I tend not to like it very much because it says something like `[y]ou view the testimony of accomplice with great caution,’ . . . I’m not in love with it because I think it amounts to a comment on the evidence. On the other hand, the Supreme Court doesn’t seem to think that.”).

[38] 263 A.2d 286, 289-90 (Del. 1970).

[39] 466 U.S. 691 (1984).

[40] Def.’s Amended Mot. for Postconviction Relief at 15.

[41] 991 A.2d 1169 (Del. 2010).

[42] Id. at 1172.

[43] Id. at 1180.

[44] Washington v. State, 4 A.3d 375, 379 (Del. 2010) (citations omitted).

[45] Smith, 991 A.2d at 1179.

[46] Id. at 1178.

[47] Id. at 1177; see also id. (“There is no reasonable trial strategy for failing to request the cautionary accomplice testimony instruction and corroboration instruction. . . . We cannot envision an advantage that could have been gained by withholding a request for th[ese] instruction[s].”) (quoting Freeman v. Class, 95 F.3d 639, 642 (8th Cir. 1996)).

[48] Strickland, 466 U.S. at 687 (“Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”).

[49] Smith, 991 A.2d at 1179.

[50] State’s Answ. Br. at 10.

[51] Id. Defendant disputes the efficacy of these identifications, arguing that, “although the Defendant was charged with the attempted murder of Krueck, the jury did not find Krueck’s testimony to be credible enough to warrant conviction and acquitted the Defendant on this charge.” Def.’s Reply in Support of Amended Mot. for Postconviction Relief at 2.

[52] State’s Answ. Br. at 10-11. Similarly, on Defendant’s direct appeal, the Supreme Court acknowledged that the question of Defendant’s identity as the shooter was “not a close one” given that there was “considerable” evidence presented by the state and “emphatic” identifications by the eyewitnesses. See infra
text accompanying notes 83-84.

[53] Def.’s Reply in Support of Amended Mot. for Postconviction Relief at 3.

[54] See supra note 47.

[55] Smith, 991 A.2d at 1180; see also Hoskins v. State, 14 A.3d 554, 562 (Del. 2011) (“The Smith court further held that defense counsel’s failure to request Bland-type of instruction will not constitute prejudice per se under Strickland v. Washington. Rather, `[t]he prejudicial effect depends upon the facts and circumstances of each particular case.'”) (citations omitted). Notably, in the conceptually similar context of trial counsel’s failure to request a limiting instruction on the issue of a testifying accomplice’s earlier acquittal of the instant offense, the Supreme Court of the United States has very recently held that, while trial counsel’s failure to request such an instruction may constitute ineffective assistance of counsel, the defendant could not establish prejudice in light of the otherwise “ample” evidence in the record to support the defendant’s conviction of First Degree Murder. Berghuis v. Thompkins, 130 S.Ct. 2250, 2265 (2010) (“On the assumption that [trial counsel’s failure to request an instruction about the defendant’s accomplice’s earlier acquittal was ineffective assistance of counsel], on this record, [the defendant] cannot show prejudice. The record establishes that it was not reasonably likely that the instruction would have made any difference in light of all the other evidence of guilt.”). Similarly, the Supreme Court of Iowa has recently held that trial counsel’s failure to request a “corroboration instruction” to “serve[] as a counterweight against the dubious credibility of an accomplice” does not establish ineffective assistance of counsel when there is “abundant” evidence corroborating the accomplices’ testimonies. State v. Barnes, 791 N.W.2d 817, 825 (Iowa 2010) (“We conclude the defendant has failed to establish a reasonable proability exists that, had his attorney requested a corroboration instruction, the outcome of the defendant’s trial would have been different. First, given the abundant evidence corroborating the accomplices’ testimonies, it is highly unlikely the jury would not have found adequate corroboration. Second, even if the jury had been properly instructed and found the corroboration insufficient, the remaining evidence was so persuasive in proving the defendant’s guilt we are not convinced there is a reasonable probability the outcome of the trial would have been different.”). See also 75A Am. Jur. 2d Trial § 1147 (“Even where accomplice instructions are required, there is no prejudice from a failure to instruct where, in fact, the witness’s testimony was sufficiently corroborated, even if such corroborative evidence is slight and entitled to little consideration when standing alone.”) (citations omitted); cf. Annotation, Necessity of, and Prejudicial Effect of Omitting, Cautionary Instruction to Jury as to Accomplice’s Testimony Against Defendant in Federal Criminal Trial, 17 A.L.R. Fed. 249, § 4(b) (“Those cases which have held or assumed that the omission of a cautionary instruction as to accomplice testimony constituted error have generally supported, by implication, the view that the erroneous omission is not prejudicial per se, and that the prejudicial effect depends on the circumstances of the particular case, but such cases have generally not indicated what specific tests or criteria, if any, are to be applied in determining whether or not the circumstances show that the error has prejudicially affected the defendant’s substantial rights.”).

[56] Although it is arguable that the trial judge’s rejection of trial counsels’ proffered instructions and his explicit disapproval of commenting on the evidence contributed to trial counsels’ failure to request a Bland instruction, the trial judge’s apparent offer to give a Bland instruction, coupled with the longstanding viability of Bland militates in favor of a finding of deficient attorney performance on this point. See supra
note 47.

[57] Def.’s Amended Mot. for Postconviction Relief at 17.

[58] Trial Transcript of Feb. 7, 2001 at 80-81; see also id. at 83-85 (“Christmas is coming and Defendant doesn’t have any money . . . [h]e needed money to pay those bills. . . .”).

[59] Def.’s Amended Mot. for Postconviction Relief at 17-18.

[60] Id. at 19.

[61] Id. at 19-20.

[62] Id. at 20. Defendant’s appellate counsel acknowledged that this issue was not raised on appeal, but could not recall whether this was “due to oversight” or if “counsel considered it as an issue to raise on appeal but decided as a matter of strategy not to raise it relative to the other issues that were argued on appeal.” Aff. ¶ 7.

[63] “Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows (A) Cause for relief from the procedural default and (B) Prejudice from violation of the movant’s rights.”

[64] State’s Answ. Br. at 13.

[65] Id. The State also submits that the “fundamental fairness” exception to the procedural bars of Rule 61(i) would not apply because the introduction of such evidence by the State was proper and, even if the admission of such evidence was error, it was harmless beyond a reasonable doubt because the alternative evidence of Defendant’s guilt was independent and “overwhelming.”Id. at 14-15. See also
Super. Ct. Crim. Rule 61(i)(5) (“The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.”).

[66] State’s Answ. Br. at 15.

[67] Id.

[68] Aff. ¶ 7.

[69] Flamer v. State, 585 A.2d 736, 758 (Del. 1990) (quotin Smith v. Murray, 477 U.S. 527, 536 (1986)).

[70] See Strickland, supra.

[71] See, e.g., Weedon v. State, 647 A.2d 1078, 1083 (Del. 1994) (“Here, [the defendant] may not raise a hearsay argument to [the witness’s] testimony because his objection in the Superior Court was predicated on a different ground. Finding no extraordinary reasons for excusing [the defendant’s] failure to raise the hearsay argument, the Court holds that the hearsay issue was not properly preserved for review, and the admission of the [witness’s] testimony did not constitute plain error.”).

[72] Baker v. State, 906 A.2d 139, 152 (emphasis added).

[73] Wright v. State, 980 A.2d 1020, 1023 (Del. 2009) (“Generally, the failure to raise a contemporaneous objection to allegedly inadmissible evidence constitutes a waiver of a defendant’s right to raise that issue on appeal, unless the error is plain.”) (citation omitted); supra note 71.

[74] Wright, 980 A.2d at 1023 (quoting Baker, 906 A.2d at 150 (Del. 2006)).

[75] See, e.g., Baynard v. State, 518 A.2d 682 (Del. 1986) (holding that an erroneous jury instruction given by this Court was “harmless error at best because it was not prejudicial to defendant.”).

[76] Allen v. State, 970 A.2d 203, 218 (Del. 2009) (“While we acknowledge that in some instances, evidence regarding a defendant’s poverty or indebtedness is relevant and the unfair prejudice arising from the reference is mitigated, this is precisely the reason for requiring a balancing under Delaware Rule of Evidence 403.”).

[77] Erskine v. State, 4 A.3d 391, 396 (Del. 2010) (quotin Hughes v. State, 437 A.2d 559, 571 (Del. 1981)).

[78] Id.

[79] Id.

[80] Id.

[81] Id.

[82] Compare Brokenbrough v. State, 522 A.2d 851, 860 (Del. 1987) (“We find that the case was not close. . . . The State presented a strong case. The State’s case was not seriously questioned by [the defendant’s] inconsistent alibi defense that was completely contradicted by the testimony of an independent third party. We hold that the prosecutor’s remarks, although improper, did not deprive [the defendant] of a fair trial.”) and Hughes v. State, 437 A.2d 559, 572 (Del. 1981) (“In our opinion, the case was a close one before the jury, the central issue of credibility was affected by the prosecutors’ statements and the Trial Judge’s general statements on the duty of the jury did not mitigate the effects of the error.”) Baker, 906 A.2d at 154 (“This was not a case where there was overwhelming evidence of the defendant’s guilt. Rather, it was a close case, without any physical evidence, that turned on the jury’s credibility determinations. Many defense witnesses testified that the complaining witness was untruthful and her story seemed inconsistent at points. . . . To allow the defendant’s convictions to stand given these circumstances would amount to manifest injustice. Accordingly, we conclude that plain error exists and that we must reverse.”).

[83] Garden v. State, 815 A.2d 327, 339 (Del. 2003)

[84] Id. at 338 (Del. 2003) (“At trial, the State presented considerable evidence establishing [Defendant’s] participation in the December 18 robbery attempt that led to Denise Rhudy’s death. Besides [Defendant’s] original codefendants-Johnson and Hollis-two of the victims confronted by Garden-Weilbacher and Krueck-were emphatic in their identification of Garden as the individual who shot Denise Rhudy.”).

[85] See supra text accompanying note 72.

[86] See Strickland, 466 U.S. at 669 (“With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”).

[87] Def.’s Amended Mot. for Postconviction Relief at 21.

[88] Trial Transcript Feb. 1, 2001 at 75.

[89] Def.’s Reply in Support of Amended Mot. for Postconviction Relief at 9 (“Accepting that trial counsel moved to sever the PDWPP charge and the trial court denied said motion, it does not excuse [appellate counsel’s] ineffective assistance in failing to raise the meritorious issue on appeal.”).

[90] Id.

[91] Trial Transcript of December 15, 2000 at 2-3.

[92] Id.

[93] Oliver v. Wainwright, 795 F.2d 1524, 1531 (11th Cir. 1987) (quoting Strickland, 466 U.S. at 688-89)).

[94] It must also be noted that it is not clear that the approach now proposed by Defendant (i.e., that the jury simply be informed that Defendant was a prohibited person due to an unspecified criminal offense) would have been available to trial counsel. This method is colloquially known as “sanitizing” a Defendant’s convictions, for purposes of Possession of a Deadly Weapon by a Person Prohibited. See State v. Sierra, 2011 WL 1344152, *1 n. 10 (Del. Super. Ct. 2011) (“It has been said that a conviction is `sanitized’ (at least in some states, for purposes of Rule 609) when a defendant’s `conviction for a similar or identical crime could be referred to as a felony conviction, and only the date of the conviction is disclosed to the jury, not the name, nature, or details of the felony.'”). Although this practice is not uncommon in this Court, there is no procedural rule or statutory provision on this point, and there is little case law discussing the practice. Id. Thus, while it is possible that the approach now suggested by Defendant would have been permitted by the trial court, it is not at all certain that Defendant would have been entitled to this alternative stipulation. Ultimately, however, this distinction is of no consequence, because the record confirms that the instant stipulation was the product of a strategic decision by trial counsel and cannot be deemed to be ineffective assistance.

[95] State’s Answ. Br. at 18 (“Because Garden was acquitted of attempted first degree murder, he cannot demonstrate that the jury necessarily inferred from his prior conviction that he had a general criminal disposition.”).

[96] See, e.g., Massey v. State, 953 A.2d 210, 217 (Del. 2008) (“[H]ad the jury believed that [the defendant] had a general criminal disposition, it likely would have found him guilty as charged on all counts. Instead, the jury convicted [the defendant] of four lesser-included offenses (second and third degree assault), and of only three of the original charges.”).

[97] See Bates v. State, 386 A.2d 1139, 1141 (Del. 1978) (“Whether to grant or deny severance is a matter within the sound discretion of the Trial Court. While abuse of discretion usually depends upon the facts and circumstances of each case, as a general rule it may be said that discretion has been abused by denial when there is a reasonable probability that substantial injustice may result from a joint trial.”).

[98] Id. at 1142 (citation omitted).

[99] Garden, 815 A.2d 334.

[100] Id. (Indeed, the jury apparently was able to evaluate each charge because it acquitted [Defendant] on the charge of attempted murder of Krueck.”).

[101] Id. (“[Defendant’s] claim that he would have testified in a separate murder trial is hypothetical and somewhat disingenuous. [Defendant] contends that he was concerned about admission of his statement to police regarding the events of December 17-but [Defendant’s] inconsistent statements could have been used to impeach his credibility in a separate murder trial as well. He initially told police he was not involved at all, then admitted that he took part in the shopping spree using the stolen credit cards. This falsehood would certainly be relevant evidence bearing on his credibility as a witness.”).

[102] See supra note 98.

[103] Strickland, 466 U.S. at 669.

[104] Def.’s Amended Mot. for Postconviction Relief at 23.

[105] Id. (citing Hatcher v. State, 337 A.2d 30 (Del. 1975)).

[106] Id. at 24. The Criminal Docket reflects that Johnson filed a motion to suppress his statements, and, after a hearing, this Court denied said motion on September 29, 2000. After being sentenced in accordance with his plea agreement, the trial judge received a letter purporting to be from Christopher Johnson; this letter recanted his trial testimony and stated that the police “took me to the park and threatened to beat [him] and stick a needle in [his] arms,” then brought him back to the police station and forced him to read a “script.” Def.’s Amended Mot. for Postconviction Relief Ex. A. In turn, the trial judge responded via letter that, given Johnson’s apparent admission that he had not testified truthfully, as required by his plea agreement, the State may seek to vacate the plea agreement and prosecute him for capital murder Id. Christopher Johnson denied authoring the initial letter to the trial judge. Garden, 815 A.2d at 346 (“The trial judge then received another letter signed by Christopher Johnson stating that he (Johnson) had never written to the court in question.”). After his conviction, Defendant moved for a new trial based on Johnson’s alleged recantation; at the hearing on Defendant’s motion for a new trial, Johnson again denied having authored the recantation letter. Id. Defendant’s motion for a new trial was denied by this Court, and this determination was affirmed by the Supreme Court. Id.

[107] State’s Answ. Br. at 21.

[108] Id.

[109] Richardson v. State, 3 A.3d 233, 240 (Del. 2010) (citations omitted).

[110] Trial Transcript of January 31, 2001 at 138.

[111] Garden, 815 A.2d at 346.

[112] Id. at 347.

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