IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
)
STATE OF DELAWARE )
) ID#1211005646 A&B
v. )
)
TROY M. DIXON, )
)
Defendant )
Submitted: July 27, 2016
Decided: October 11, 2016
On Defendant’s Amended Motion for Postconviction Relief. DENIED.
On Defendant’s Motion to Compel. DENIED AS MOOT.
On Defendant’s Motion for Correction of Sentence. DENIED.
ORDER
Matthew B. Frawley, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
Anthony A. Figliola, Jr., Esquire, Figliola & Facciolo, Wilmington,
Delaware, Attorney for Defendant as to the Amended Motion for
Postconviction Relief.
Troy M. Dixon, James T. Vaughn Correctional Center, Smyrna, Delaware,
pro se as to the Motion to Compel and Motion for Correction of Sentence.
COOCH, R.J.
This 11th day of October 2016, upon consideration of Defendant’s
Motion for Postconviction Relief, Motion to Compel, and Motion for
Correction of Sentence:
1
I. FACTS AND PROCEDURAL HISTORY
1. On January 7, 2013, a grand jury indicted Defendant on charges of
Assault First Degree, Possession of a Firearm during the
Commission of a Felony (“PFDCF”), Disregarding a Police
Officer’s Signal, Resisting Arrest, and Serious Injury Possession of
a Firearm by a Person Prohibited (“PFBPP”). Before trial,
Defendant moved to have the charge of Serious Injury PFBPP
severed from the remaining charges and tried separately, which the
trial court granted. On October 1, 2013, at the first trial, a jury
convicted Defendant of Assault Second Degree (as the lesser
include offense of Assault First Degree), PFDCF, and Resisting
Arrest. Defendant’s conviction for was affirmed by the Delaware
Supreme Court on direct appeal.1 On April 7, 2014, at a separate
trial for the PFBPP charge, a jury found Defendant guilty of
Simple PFBPP (as the lesser included offense of Serious Injury
PFBPP). That conviction was also affirmed by the Delaware
Supreme Court on direct appeal.2
2. On December 2, 2014, Defendant filed a timely Motion for
Postconviction Relief, in which he made numerous claims
stemming from both trials. This Court appointed counsel, Anthony
A. Figliola, Jr., to represent Defendant on the motion. On
September 25, 2015, Defendant’s appointed counsel filed an
Amended Motion for Postconviction Relief. In the Amended
Motion, Defendant’s appointed counsel decided to pursue only one
claim: that Defendant’s trial counsel improperly requested that the
Court not give the jury a limiting instruction after the State
1
Dixon v. State, 2014 WL 4952360 (Del. Oct. 1, 2014) (rejecting Defendant’s
contentions that the trial court erred when it
(i) allow[ed] two photographic lineups into evidence; (ii) den[ied]
a mistrial based on a witness’ unsolicited hearsay statement; (iii)
admitt[ed] evidence of certain events on November 4, 2012 (four
days before [Defendant] was arrested) that occurred at the Rebel
nightclub and the Thunderguards motorcycle club where [the
victim] was shot and killed; and (iv) den[ied] a mistrial after jurors
had contact with two trial spectators in and outside of the
courthouse.”).
2
Dixon v. State, 2015 WL 2165387 (Del. May 7, 2015) (rejecting Defendant’s contention
that the trial court violated Article I § 8 of the Delaware Constitution when it instructed
the jury that it could find Defendant guilty Simple PFBPP as a lesser included offense of
Serious Injury PFBPP, even though Simple PFBPP was not included in the indictment).
2
introduced evidence under D.R.E. 404(b). The Court granted
Defendant’s counsel’s request and did not give a limiting
instruction. After Defendant’s trial counsel filed an affidavit in
response to the motion and the State filed a response to the motion,
the Court gave Defendant the opportunity to file a supplemental
response to Defendant’s Amended Motion for Postconviction
Relief. Defendant filed such a supplemental response pro se on
June 16, 2016.
3. On June 20, Defendant also filed pro se a Motion to Compel in
which he requested records of police interviews, a transcript of a
witness’s statement to Defendant’s trial counsel, and a transcript of
Defendant’s trial for PFBPP. On August 1, Defendant also filed
pro se a Motion for Correction of Sentence pursuant to Superior
Court Criminal Rule 35(a), alleging (implicitly) that the Court
imposed an illegal sentence. The Court now addresses all of
Defendant’s motions in a single order.
II. ANALYSIS
4. As a threshold matter, the parties agree that Defendant’s Motion
for Postconviction Relief is not procedurally barred by Superior
Court Criminal Rule 61(i). The Court thus turns to the merits of
Defendant’s motion. Defendant’s pro se Motion for
Postconviction Relief raised numerous grounds for relief. In
analyzing the merits of each of Defendant’s claims, Defendant’s
appointed counsel stated in toto in Defendant’s Amended Motion
for Postconviction Relief:
Claims raised by Mr. Dixon have been examined and at first
blush have merit. However, for example, failure to raise alibi
defense, nothing in [Trial] Counsel’s file contains the name of
the alibi witnesses Mr Dixon claims to have given to [Trial]
Counsel, with the exception of Jason Baul[.] Counsel claims to
have contacted Mr. Baul and it was determined [] that Mr.
Baul’s testimony would not be helpful. Trial counsel claims
not to have received the names of other alibi witnesses. Dixon
[stated] these witnesses could and would testify that Dixon was
at Bell’s funeral at the time of the shooting. My reading of the
transcripts support the argument that Dixon was at the funeral
of Mr. Bell, [and] the allegation is that Dixon left the funeral[,]
followed the victim and thereafter committed the crime.
3
Counsel acknowledges that the witnesses may have been
helpful to Dixon’s case but the allegation that had counsel
presented these witnesses he would have been found not guilty
is by no means a certainty and again the file contains no
correspondence confirming that the names of these witnesses
were ever given to trial counsel.
Additional claims raised by Defendant that have been
examined by Post Conviction Counsel and deemed to be
without merit are as follows:
1. Suggestive photo lineup, this issue was raised at trial and
argued on direct appeal. Dixon’s allegation that the issue
should have been raised pre trial is correct, however no
prejudice can be shown in that it is an unsupported
conclusion that had it been raised prior to trial that it would
have been granted. Further the trial record shows that
Dixon was never identified as the shooter.
2. Reverse 404(b)[,] Dixon argues that the actual shooter gave
Dixon the gun after the crime had been committed. Dixon
claims that person’s record would have supported Dixon’s
claim.
Counsel can find nothing in the transcripts or [trial]
counsel’s notes that this line of defense was ever
considered. Though the claim may have merit if it was true,
it cannot be supported by anything in the file or
investigation that this issue was ever discussed.
3. Failure to object to Identification instruction. Identification
was a key issue in this trial. Counsel finds that the
identification instruction given by the trial Judge was the
standard instruction giving no basis for an objection.
4. Failure to object to flight instruction. Post Conviction
Counsel finds no merit in this argument. Dixon contends
that the police lacked probable cause to stop and detain the
vehicle since the plates on the vehicle hew as in differed
from what was transmitted over police radio. The fact that
the plates were different is in fact a true statement as
supported in the transcripts. [Appointed] Counsel, however,
sees the basis for the instruction . . . . [Trial] Counsel could
have objected to the instruction, however post conviction
counsel believes the evidence as such warrants the
instruction and an objection would have been overruled.
4
5. Failure to Object to the testimony of Carl Rhone[.] Again
this is a conclusive argument on the part of defendant, there
is nothing on the record or in the file to indicate a challenge
to Carl Rhone would have been productive. Counsel is
aware that Mr. Rhone’s credentials have been challenged
by counsel in other cases without success.
6. Other arguments raised by defendant such as failing to
provide client with discovery, failure to investigate, failure
to resubmit Motion for Judgment of Acquittal, failing to
raise issues on appeal, [and] failing to supply defendant
with the correct facts regarding witness statements and
improper arguments in closing again fail to show that the
outcome of the trial would have been different but for the
action or inaction of counsel.
...
7. Defendant’s second trial on the severed charge of PFBPP
resulted in a finding of not guilty. Defendant claims
counsel was ineffective in [the] first trial for failing to
argue the points that led to a verdict of not guilty in the
second trial. Defendant’s reasoning is understandable but
not supportable for an ineffective claim.
8. In arguing that counsel was ineffective for failing to object
or raise the argument of Prosecutorial [Misconduct]
regarding improper vouching for State’s witness in closing.
Postconviction counsel has reviewed this argument and
believes the comments made by the prosecutor do not [rise]
to the level requiring a reversal.3
5. This Court finds that the contentions not addressed by Defendant’s
appointed counsel are without merit for the reasons well stated in
Defendant’s Amended Motion for Postconviction Relief. The
Court addresses separately the D.R.E. 404(b) issue.
6. In his Amended Motion for Postconviction relief, Defendant
contends that he is entitled to a new trial because a cautionary
instruction was not given to the jury after the State introduced
evidence under D.R.E. 404(b). At trial, the Court permitted the
State to present evidence that Defendant had an argument at a bar
with someone who would later be the driver of the car in which the
3
Def.’s Am. Mot. for Postconviction Relief, at 1-3.
5
victim in this case was shot for the purpose of establishing intent
and motive under D.R.E. 404(b). Defendant submits that, under
Getz v. State,4 the Court “must” give a cautionary instruction
concerning the purpose for which the evidence has been admitted.
7. At trial, Defendant’s counsel had objected to the introduction of
evidence under Rule 404(b). However, the Court overruled the
objection and permitted the State to present the Rule 404(b)
evidence. The Court then proposed a cautionary instruction, to
which Defendant’s trial counsel responded, “I prefer that it not be
given at all. I think that it emphasizes events that I don’t want to
happen.”5 Recognizing Defendant’s trial counsel’s tactical
decision, the Court did not give the jury any cautionary instruction.
Defendant now contends that a cautionary instruction is
“mandatory” and cannot be waived for strategic purposes.
Accordingly, Defendant submits that this alleged error warrants a
new trial.
8. Defendant’s argument is inapposite, as requesting the omission of
a cautionary instruction can be a proper tactical decision. In Major
v. State, the Delaware Supreme Court analyzed a factually similar
issue.6 The trial court in Major had admitted evidence pursuant to
Rule 404(b), but the defendant’s trial counsel did not request a
cautionary instruction as specified in Getz.7 On appeal, the
defendant contended that this constituted reversible error.8
However, the Delaware Supreme Court held that “no such
instruction was requested, perhaps for tactical reasons and to avoid
emphasis, and it was not plain error under the circumstances to
omit such an instruction.”9 Further, in State v. Fogg, this Court
also considered the question of whether it must provide a limiting
instruction following the admission of “prior bad acts” evidence
under Rule 404(b).10 This Court found that it did not err when it
omitted such an instruction, and noted that “[trial counsel] testified
4
Getz v. State, 538 A.2d 726, 734 (Del. 1988).
5
Trial Tr. 40:9-12, Sept. 27, 2013.
6
1995 WL 236658, *2 (Del. Apr. 20, 1995).
7
Id. at *1.
8
Id. at *2.
9
Id.
10
2002 WL 31053868, *27 (Del. Super. Sept. 10, 2002), aff’d, 2002 WL 31873705 (Del.
2002).
6
that he did not request such a limiting instruction specifically [for
tactical reasons in order to avoid emphasis].”11
9. It is apparent that Defendant’s trial counsel requested that the
cautionary instruction be omitted for tactical reasons. In his
Affidavit in Response to Amended Motion for Post Conviction
Relief, Defendant’s trial counsel stated (in addition to what he had
advised the Court during the trial),
Counsel for defendant and the co-defendant, both were of the
belief that a cautionary instruction would be harmful to their
clients, rather than beneficial as it would draw further attention
to the prior bad act to such an extent that the court would halt
the trial and address the jury directly about the bad act. This
was a strategic decision by trial counsel.12
As the Delaware Supreme Court held in Major, and as this Court
held in Fogg, this type of tactical decision is appropriate under
Delaware Law.
10. In contending that trial counsel was ineffective when he made a
tactical request that the court not give a cautionary instruction
following the admission of evidence under Rule 404(b), Defendant
must satisfy both prongs of the Strickland standard for ineffective
assistance of counsel.13 As the United States Supreme Court held
in Strickland v. Washington, to prove ineffective assistance of
counsel, a defendant must show that (1) his trial counsel’s behavior
was deficient when compared to an objective standard of
reasonableness, and (2) that the deficient behavior prejudiced the
outcome of the case.14 In the case at bar, Defendant has failed to
satisfy either prong of the Strickland analysis. As stated above,
Defendant’s trial counsel’s tactical decision to request the Court
omit a cautionary instruction does not constitute deficient conduct.
Assuming, arguendo, that Defendant’s trial counsel’s strategic
request did constitute deficient conduct, Defendant has failed to
show how the allegedly deficient conduct prejudiced the outcome
11
Id.
12
Aff. in Resp. to Am. Mot. for Postconviction Relief, at 1.
13
State v. Floray, 2000 WL 1211237, at *2 (Del. Super. Aug. 22, 2000), aff’d, 768 A.2d
469 (Del. 2001).
14
466 U.S. 668, 687 (1984).
7
of his trial. Accordingly, Defendant’s claim that his trial counsel
was ineffective is without merit.
11. Defendant also filed a Motion to Compel, requesting this Court to
compel production of certain transcripts. In his motion, Defendant
contends that the materials he is asking for will assist him in
litigating his Motion for Postconviction Relief. However, because
Defendant’s Amended Motion for Postconviction Relief is denied,
the Court denies Defendant’s Motion to Compel as moot.
12. Finally, Defendant filed a Motion for Correction of Sentence under
Superior Court Criminal Rule 35(a) with respect to his sentence for
the PFBPP conviction. Rule 35(a) permits a defendant to petition
the Court to “correct an illegal sentence . . . [or] correct a sentence
imposed in an illegal manner.”15 “A sentence is illegal if it
exceeds the statutory limits, violates double jeopardy, is
ambiguous or internally contradictory, or is not authorized by the
judgment of conviction.”16 In the case at bar, Defendant’s
sentence was neither “illegal” nor was it “imposed in an illegal
manner.” Defendant’s eight years at Level V supervision sentence
for the charge of PFBPP was within the discretion of the Court.
Accordingly, Defendant’s Motion for Correction of Sentence under
Rule 35(a) is without merit.
III. CONCLUSION
Defendant’s Motion for Postconviction relief is DENIED.
Defendant’s Motion to Compel is DENIED AS MOOT.
Defendant’s Motion for Correction of Sentence is DENIED.
IT IS SO ORDERED.
/s/Richard R. Cooch
Richard R. Cooch, R.J.
15
Super. Ct. Crim. R. 35(a).
16
Collins v. State, 2016 WL 5369484, at *1 (Del. Sept. 23, 2016).
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oc: Prothonotary
cc: Investigative Services
Matthew B. Frawley, Esq.
Anthony A. Figliola, Jr., Esq.
Troy M. Dixon
9