State v. Carter

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
V. § ID No. 1306020689
ARTHUR CARTER, §
Defendant. §
OPINION

Date Submitted: October 19, 2016
Date Decided: January 18, 2017

Upon Defendant’s Amended Motionfor Postconviction Relief: DENIED.

Matthew C. Buckworth, Esquire, and Patrick J. Collins, Esquire, Collins &
Associates, Wilmington, DE. Attorneys for Defendant Arthur Carter.

Kelly Hicks Sheridan, Deputy Attorney General, Delaware Department of Justice,
Wilmington, DE. Attorney for the State.

Jurden, P.J.

INTRODUCTION
Before the Court is Defendant Arthur Carter’s Amended Motion for
Postconviction Relief,l the Affidavits of Trial Counsel and Appellate Counsel,2 the
State’s Response,3 and Defendant’s Reply.4 For the following reasons, the
Amended Motion is DENIED.
BACKGROUND
On June 22, 2013, Defendant Arthur Carter got into an argument With his
pregnant girlfriend, Morlicea Capers (“Capers”).5 Following the argument,
Capers’ uncle pushed Defendant out of the residence, Whereupon Defendant fired a
gun into the air and sped off in a silver car.6 At the time Defendant fired the gun,
he Was a person prohibited by law from possessing a firearm due to a prior
conviction.7
On January 7, 2014, Defendant was brought to trial on charges of
Aggravated Menacing, Possession of a Firearm During the Commission of the

Felony (“PFDCF”), and Possession of a Firearm by a Person Prohibited

1 D.I. 64.
2 D.I. 70 (Affldavit of Appellate Counsel attached as Exhibit C).
3 D.I. 71.
4 D.I. 72.
5 Carter v. State, 105 A.3d 988, 2014 WL 7010032, at *1 (Del. Nov. 12, 2014) (TABLE)
gdescribing the version of events fairly established by the State’s evidence at trial).
Ia'.
7 D.I. 15.

(“PFBPP”).8 The State presented the testimony of five witnesses: two
neighborhood residents; a police officer who responded to Capers’ 911 call; a
custodian of 911 call records for New Castle County; and the detective who
interviewed Defendant.

The first neighborhood resident testified to hearing an argument coming
from the residence and to hearing gunshots soon thereafter.9 The second
neighborhood resident testified to hearing a single gunshot.10

The police officer who responded to Capers’ 911 call testified he arrived at
the scene within minutes after Capers called 911, Capers was “very excited, very
upset, agitated,” and she remained excited during the time the officer spoke with

ll Capers told the officer she had a dispute with Defendant that resulted in

her.
Defendant leaving the residence, returning to fire a gun into the air, and then
fleeing in a silver vehicle.12

The 9ll custodian testified that two 911 calls were made regarding the

incident.13 The first call was made by Capers; the second, by a child inside the

house. The Court granted the State permission to begin playing Capers’ 911 call to

8 Defendant was indicted on several more charges, but prior to trial, the State entered a nolle
prosequi on some charges, and after the close of State’s case, the State entered a nolle prosequi
on the charge of Terroristic Threatening. D.I. 51 (“Trial Tr.”) at 68:1-10.

9 Triai Tr. at 19;10_20:9.

111 Id. at 26;4-23.

111d. at38:8_21,39;1_6.

12 Id. at 39:7_15.

13 Id. at48:1419:6.

the jury based on the State’s proffer.14 After hearing a portion of the 911 call, the
'Court stopped the recording for a brief recess, and the jury left the courtroom.15

During the recess, the Court held a discussion with the State and
Defendant’s trial counsel regarding the admissibility of the 911 call.16 The Court
found that the portion of Capers’ 911 call that was played for the jury qualified as
an excited utterance under Delaware Rule of Evidence (“D.R.E.”) 803(2) and, in
accordance with Dixon v. State,17 was non-testimonial such that its admission did
not violate the Confrontation Clause of the Sixth Amendment to the United States
Constitution.18 The remainder of Capers’ 911 call was not played for the jury.

Before the jury returned to the courtroom, the Court listened to the 911 call
made by a child inside the residence and found the call admissible19 The jury
returned to the courtroom, and the child’s call was played to the jury.20

The detective who interviewed Defendant testified that Defendant provided
three different accounts of what occurred during his interview.21 In all three

accounts, Defendant admitted to having a verbal dispute with Capers and that

14 Id. at 34;14_23, 49:2-6

15 Id. at49:10_16.
161d.at49:18_51:16.

12 996 A.2d 1271 (Del. 2010).
18 Trial Tr. at 51;22-52:18.

19 ld. at 54:7_10.

211 ld. at 55;8_12.

211d. at61;10_21.

Capers’ uncle pushed Defendant out of the residence.22 However, in the first
account, Defendant stated that he heard a gunshot after being pushed out of the
residence but did not know its point of origin. In the second account, Defendant
stated that, after being pushed out of the residence, he saw a friend of his
accompanied by an unknown male and that the unknown male fired a shot into the
air. In the third and final account, Defendant stated that the first two accounts were
untrue and that he fired a shot into the air after being pushed out of the residence.

Following the detective’s summation of Defendant’s interview, the State
played a recording of the interview for the jury.23 The detective’s recounting of the
substance of the interview was intended to clarify the recording which was heavily
redacted in order to remove references to a companion case.24

Finally, rather than the State introducing potentially prejudicial evidence of
Defendant’s prior conviction to prove the PFBPP charge, the parties stipulated that
Defendant was a person prohibited from possessing a firearm.25 The stipulation
stated only that Defendant is prohibited from possessing a firearm; it did not

indicate why.

221d. at 61:10-62;21_
23 Id. at 63;7_16.

24 Id. at 57;9-58:3.

23 D.I. 15.

Capers did not testify at trial.26 At the close of the State’s case, Defendant
moved for a judgment of acquittal on the charge of Aggravated Menacing and the
companion charge of PFDCF on the basis that the State did not produce sufficient
evidence that Capers, the victim of the Aggravated Menacing charge, was actually
in fear of imminent physical injury.27 ln response, the State asserted that it met its
burden of proof through circumstantial evidence, consisting of Capers’ statements
during the 911 call and the testimony of the police officer who responded to the
911 call.28 The Court denied Defendant’s motion for judgment of acquittal.29

Defendant did not testify and called no witnesses.30 During closing
argument, defense counsel, inter alia, challenged the State’s case by highlighting

1
l.3 Defense counsel

the State’s failure to produce Capers as a witness at tria
questioned why the State would rely on Capers’ 911 call_rather than her live

testimony subject to cross examination-as evidence that she was placed in fear of

imminent physical injury.32

26 A subpoena was issued, but was returned non est inventus by the sheriff. D.I. 21.

27 Trial Tr. at 69:14-70:1; ll Del. C. § 602(b) (“A person is guilty of aggravated menacing when
by displaying what appears to be a deadly weapon that person intentionally places another person
in fear of imminent physical injury.”).

23 Trial Tr. at 70;2_71;10.

231d. at 71;11_15.

30 1a at 68:12$9:10.

311d. ar 80;1_14.

32 Id. at 80:20_81:2.

The jury found Defendant guilty of all charges,33 and on April 11, 2014,
Defendant was sentenced.34

On direct appeal, Defendant’s appellate counsel filed a brief and motion to
withdraw under Supreme Court Rule 26(c), asserting that there were no arguably
appealable issues. In response, Defendant raised four arguments pro se: (1) “the
State violated his Sixth Amendment right to confront a witness against him when it
failed to call the victim to testify;” (2) “the State’s evidence was insufficient to
establish his guilt on the charge of PFDCF because there was no gun or shell
casing or other physical evidence admitted at trial;” (3) “the admission into
evidence of his taped interview with the police violated his due process rights
because his statement was not knowing and voluntary because he was intoxicated;”
and (4) “the State violated Brady v. Marylana' when it failed to disclose that the
victim had written two letters recanting her prior statement to the police.”35

On November 12, 2014, the Delaware Supreme Court affirmed the judgment
of conviction.Z’6

On January 6, 2015, Defendant submitted a Motion for Postconviction

Relief pursuant to Superior Court Criminal Rule 61.37 Counsel was appointed, and

33 Trial Tr. at 105:18_106:19.

34 D.I. 44.

33 carter, 2014 wL 7010032, at *1.
33 D.I. 54;

32 D.I. 55.

Defendant thereafter submitted an Amended Motion for Postconviction Relief.38
Defendant alleges five grounds for relief: (1) trial counsel was ineffective for
stipulating that Defendant was a person prohibited at the time the offense occurred;
(2) trial counsel was ineffective for failing to file a motion in limine to exclude the
911 calls; (3) trial counsel was ineffective for not contacting Capers as a possible
defense witness; (4) trial counsel was ineffective for failing to object to hearsay
statements introduced through the police officer who responded to the scene; and
(5) appellate counsel was ineffective for failing to raise claims on appeal that were

preserved by trial counsel.39

STANDARD OF REVIEW
Motions for postconviction relief are governed by Superior Court Criminal
Rule 61. Rule 61(i) bars relief on any ground for postconviction relief that: (1)
was not timely filed; (2) was not asserted in prior postconviction motions; (3) was
not asserted in the proceedings leading to the judgment of conviction; or (4) was
previously adjudicated. Claims of ineffective assistance of counsel generally
cannot be brought at trial or on direct appeal and, therefore, generally are not

procedurally barred by Rule 61(1)(3).‘1°

33 D.1.64.

32 Id. ar 20-40.

40 Sahin v. State, 7 A.3d 450, 451 (Del. 2010) (“Generally, we do not consider claims of
ineffective assistance of counsel in a direct appeal. The reason for that practice, in part, is to
develop a record on that issue in a Superior Court Rule 61 post-conviction proceeding.”).

8

This is Defendant’s first Rule 61 motion, it was timely filed, and it concerns
only claims of ineffective assistance of counsel. Consideration of the merits is not
barred by Rule 61(1)(1)-(4) except as discussed below in relation to Ground Two.

DISCUSSION

Claims of ineffective assistance of counsel are governed by the Strickland v.
Washington two-prong test.41 To establish a claim of ineffective assistance of
counsel under Strickland, a defendant must show: (1) counsel’s performance fell
below an objective standard of reasonable_ness; and (2) prejudice, meaning that, but
for counsel’s unprofessional errors, there is a reasonable probability the result of
the proceeding would have been different.42

Ground One

ln his first ground for relief, Defendant asserts that trial counsel provided
ineffective assistance when trial counsel stipulated to Defendant’s status as a
person prohibited from possessing a firearm and that, as a result, Defendant
suffered constitutional prejudic'e.43 In support of this assertion, Defendant argues
that trial counsel should have moved to sever the PFBPP charge and have it tried
separately from the Aggravated Menacing and PFDCF charges in order to

minimize prejudice to Defendant based on his status as a person prohibited.

41 466 U.s. 668 (1984).
42 Id. at 694.
43 D.I. 64 at 20-23.

The record reflects that Defendant was not prejudiced by the joinder of
Defendant’s PFBPP charge with the Aggravated Menacing and PFDCF charges.
Neither the stipulation of Defendant’s status as a person prohibited nor the copy of
the indictment included with the jury instructions indicate why Defendant was
prohibited from possessing a firearm.44 Further, the jury instructions on the PFBPP
charge contain the following limiting instruction:

The reason that the defendant is prohibited from owning or possessing

a firearm is irrelevant to your deliberations in this case. You shall not

speculate as to the reason why defendant is prohibited, nor consider

that fact as evidence of guilt as to the other crimes alleged in the
indictment.45

Consistent with that limiting instruction, the State never emphasized
Defendant’s status as a person prohibited to the jury. In its opening statement,
after describing the events it intended to prove, the State summarized the charges
alleged against Defendant:

For this he stands before you charged with possessing that handgun in

violation of the law, for aggravated menacing for displaying a deadly

weapon in order to cause . . . fear of injury . . . and for possession of a

firearm during the commission of a felony . . . .46
The State did not indicate why Defendant’s possession of a handgun would violate

the law, and neither the State nor Defendant’s trial counsel made any other

reference to the PFBPP charge until the State submitted the stipulation into

44D.1.14,15.
43 D.I. 14.
43 Trial Tr. ar 6:23_7:7.

10

evidence at the close of its case. Thereafter, during closing argument, the State
told the jury that the element of being a person prohibited was stipulated to without
any further comment that might invite jury speculation.47

For the foregoing reasons, Defendant has not demonstrated that he was
prejudiced by the joinder, and therefore, Defendant’s ineffective assistance claim
on this ground fails.48
Ground Two

In his second ground for relief, Defendant asserts that trial counsel provided
ineffective assistance when trial counsel did not file a motion in limine to exclude:
(1) the entirety of the 911 call made by the child; and (2) portions of the 911 call
made by Capers that did not qualify as excited utterances.49
A.' The Child’s 911 Call

In support of his first argument, Defendant argues that the child’s 911 call
should have been excluded under D.R.E. 403 as unfairly prejudicial and

cumulative because the child was audibly upset and because the information

47 Ia'. at 73:74:6; see Lewis v. State, 144 A.3d 1109, 1116-17 (Del. 2016) (“[Defendant’s] status
as a person prohibited . . . was an element of the crime, the prosecutor could properly recite that
stipulated fact in his closing argument. The prosecutor did not go beyond this permissible
purpose in his closing. Likewise, reiterating that [defendant] had stipulated to one of the
elements of the crime Was not improper considering the court’s duty to inform the jury of all of
the elements of the crime.”).

48 State v. Bacon, 2005 WL 2303810, at *4 (Del. Super. Aug. 29, 2005), ajj”’d, 903 A.2d 322
(Del. 2006) (finding that the defendant was not prejudiced by a stipulation to his status as a
person prohibited).

43 D.I. 64 at 2429

11

provided by the child was largely duplicative of Capers’ 911 call. Defendant
maintains the child’s 911 call “added no substance to the trial, but rather, only
served to tug on the heartstrings of the jurors.”50

On this issue, Defendant fails to substantiate that counsel provided
ineffective assistance because Defendant’s argument that the child’s 911 call
should have been excluded pursuant to D.R.E. 403 is without merit. D.R.E. 403
states: “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues
or misleading the jury, or by considerations of undue delay, waste of time or
needless presentation of cumulative evidence.”51 In her 911 call, the child placed
Defendant outside of the residence with a gun and stated that Defendant shot the
gun. These statements are plainly relevant to core facts in the case. Thus, the
child’s statements were both highly probative and unlikely to confuse or mislead
the jury.

As to Defendant’s argument that the child’s statements were excludable

under D.R.E. 403 as cumulative, this argument lacks merit. Cumulative evidence

is “[a]dditional or corroborative evidence to the same point. That which goes to

311 Id. ar 26.
51 Emphasis added.

12

prove what has already been established by other evidence.”52 The State
introduced statements from two eyewitnesses, Capers and the child. The
eyewitness statements were largely consistent with each other and consistent with
Defendant’s admission to the police during his interview that he fired a gun into
the air following an altercation with Capers’ uncle. Thus, the child’s 911 call was
partially cumulative in that it was corroborative of key evidence in the case.
However, given the small number of witness statements and the possibility of
Defendant or Capers testifying at trial inconsistently with their prior statements,
any “needless[ly]” cumulative aspect of the child’s 911 call was a'e minimus such
that exclusion was not warranted under D.R.E. 403.

Defendant’s argument that the child’s emotional state during the 911 call
was needlessly inflammatory, such that the 911 call was excludable as prejudicial
under D.R.E. 403, also lacks merit. Any potential for the child’s emotional 911
call to inflame the passions of the jury was mitigated both by the call’s brevity53
and by the State’s scrupulous efforts not to improperly ply the jury’s sympathies.

During its opening statement, the State, in passing, referred to the child’s 911 call

32 Guy v. srare, 999 A.2d 863, 870 (Del. 2010) (quorirrg Brack’s Law Dictiorrary 380 (6rh ed.
1990)); see also United States v. Williams, 81 F.3d 1434, 1443 (7th Cir. 1996) (“Evidence is
‘cumulative’ when it adds very little to the probative force of the other evidence in the case, so
that if it were admitted its contribution to the determination of truth would be outweighed by its
contribution to the length of the trial, with all the potential for confusion, as well as prejudice to
other litigants, who must wait longer for their trial, that a long trial creates.” (citing Federal Rule
of Evidence 403)).

33 Trial Tr. 3153:7-15.

13

as the 911 call of an inhabitant of the residence.54 During trial, the State
authenticated the child’s 911 call through the 911 custodian without reference to
the identity of the caller or the caller’s emotional state.55 Finally, during closing
argument, the State touched upon the factual elements of the child’s statements-
Defendant was in front of the house and shot a gun_but did not reference the
child’s emotional state as evidence to support any fact in dispute.56 Rather, the
State made clear that Capers was the victim of the Aggravated Menacing charge
and cited Capers’ statements to the 911 operators as evidence that Defendant’s
actions placed her in fear of imminent physical injury.57

For the foregoing reasons, the probative value of the child’s 911 call was not
“substantially outweighed” by any unfair prejudice or needless cumulativeness.58
Therefore, Defendant has failed to show either that trial counsel’s performance fell
below an objective standard of reasonableness for failing to file a motion in limine
under D.R.E. 403 to exclude the child’s 911 call or that Defendant was thereby

prejudiced.

34 1a ar 8:9-15.

33 1a ar 46;20_49;4.

33 1a ar 76:13_19.

32 1a ar 76:2_12.

33 saa a.g., srara v. Biar, 2010 wL 5557497, ar *2 (Dal. super Daa 29, 2010) (frrrdirrg that rha
probative value of the 911 call at issue was not “substantially outweighed” merely because the
call was emotionally volatile).

14

B. Capers’ 911 Call

In support of his second argument, that trial counsel was ineffective for
failing to object to portions of Capers’ 911 call as inadmissible hearsay, Defendant
argues that Capers calmed down throughout her 911 call, such that portions of the
call were inadmissible hearsay and not excited utterances.

This basis for relief is procedurally barred by Rule 61(1)(4). Trial counsel
challenged the admission of Capers’ 911 call as an excited utterance, and the Court
explicitly ruled that the portion of Capers’ 911 call that was played for the jury was
admissible as an excited utterance.59 This determination was upheld on appeal.60
Therefore, although couched as a matter of ineffective assistance of counsel, the
claim is barred by Rule 61(1)(4).

Ground Three

In his third ground for relief, Defendant asserts that trial counsel provided
ineffective assistance by failing to contact Capers as a potential defense witness
even after she sent letters to two Superior Court judges seeking to have
Defendant’s charges dropped.61 In further support of this assertion, Defendant
submitted an Affidavit, wherein Capers claims that, at the time of the offense: (1)

she was not placed in fear that Defendant would harm her; (2) Defendant “never

33 1a a151;22-52:18.
33 carrar, 2014 wL 7010032, ar *2.
31 D.I. 10, 39.

15

pointed a gun at me;” and (3) she would have testified at trial consistently with her
Affidavit.62 Defendant concludes that trial counsel should have pursued Capers as
a witness and presented her testimony at trial.

As the United States Supreme Court stated in Stricklana', “[t]he benchmark
for judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.”63 Because there are “countless ways
to provide effective assistance in any given case,” “[j]udicial scrutiny of counsel’s
performance must be highly deferential.”64 ln regard to defense counsel’s duty to
investigate:

[S]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation65

Finally, “[t]he reasonableness of counsel’s actions may be determined or

substantially influenced by the defendant’s own statements or actions,” and

“[w]hen a defendant has given counsel reason to believe that pursuing certain

32 D.I. 65 ar A205-06.
33 466 U.s. at 686.

34 lai ar 689.

33 Ia'. ar 690-91.

16

investigations would be fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.” 66

In his Affidavit, trial counsel denies that he provided ineffective assistance
of counsel by not contacting Capers. According to trial counsel, throughout the
course of trial counsel’s representation of Defendant, Defendant hoped and
believed that Capers would not appear for trial, and “[a]t no time did the
[Defendant] ever request that Morlicea Capers be subpoenaed for trial as a defense
witness.”67

Beyond Defendant’s failure to request that Capers be pursued as a defense
witness, Defendant’s assertion that Capers’ proposed testimony would have aided
the defense is not certain. First, had Capers testified at trial, the State would have
had the opportunity to cross examine Capers regarding her ongoing relationship
with Defendant (as the mother of his children) and to impeach her through any
inconsistencies between her in court testimony and her prior statements. In fact,
the State anticipated that Capers might testify inconsistently with her statements to

police and informed trial counsel prior to trial of the State’s intention to call Capers

and preparedness to introduce Capers’ prior statements68

66
Ia’. at 691.
67 D.I. 70. Trial counsel’s records reflect that trial counsel discussed the importance of Capers’

911 call to the State’s case with Defendant. Ia’., Ex. B.
66 D.I. 70, Ex. B (recounting trial counsel’s discussion with the prosecutor).

17

Second, had Capers testified at trial, trial counsel would have lost
opportunities to challenge the State’s case based on Capers’ absence from trial.
For example, during closing argument, trial counsel highlighted Capers failure to
appear as a failure of the State to produce best evidence.69 Further, trial counsel
exploited the limitations of Capers’ 911 call as evidence that Defendant placed
Capers in fear of imminent physical injury. Trial counsel pointed to Capers’
statement that she was inside the residence and the 911 dispatcher’s instruction that
Capers stay away from the window as evidence that Defendant (who was outside
the residence) could not have displayed a gun to Capers.70 This opportunity may
have been lost had Capers testified in accordance with her Affidavit. In her
Affidavit, Capers does not deny that Defendant displayed a gun to her or that
Defendant fired a gun, she denies that Defendant pointed a gun at her.71

In sum, Defendant gave trial counsel reason to believe that pursuit of Capers
as a witness would have been fruitless because Capers likely would not appear for
trial. Had Capers appeared, she would likely have been impeached by the State (if
she testified consistently with her Affidavit), and trial counsel would have lost

opportunities to attack the State’s case based on her absence. Thus, trial counsel’s

33 Trial Tr. ar 80:20_81:2.

76 Id. at 81:3-23; 11 Del. C. § 602 (“A person is guilty of aggravated menacing when by
displaying what appears to be a deadly weapon . . . .”).

31 D.I. 65 at A205-06.

18

decision not to pursue Capers as a defense witness was professionally reasonable
and does not support an ineffective assistance of counsel claim.
Ground F our

In his fourth ground for relief, Defendant asserts that trial counsel provided
ineffective assistance by failing to object to Capers’ hearsay statements that were
introduced through the responding officer’s testimony.72 Defendant asserts that
Capers was no longer under stress from a startling event at the time the officer
responded and, therefore, her statements to the officer were inadmissible hearsay.
Defendant argues that he was prejudiced by the statements’ admission because the
statements further incriminated him.

Assuming, arguendo, that Capers’ statements to the officer were not excited
utterances, Defendant was not prejudiced by the officer’s recounting of Capers’
statements to him. The State asked the responding officer what Capers told him
when he arrived, and the officer stated:

She told me that her ex-boyfriend, Arthur Carter_she had a dispute

with him inside the residence, which was a physical altercation, and

he had fled the residence and then returned to the residence with a

handgun and had fired a round up in the air in front of the house and

fled in a silver vehicle just prior to my arrival.73

This short recitation was duplicative of the non-testimonial, excited utterances

made by Capers and the child in their 911 calls. Inter alia, Capers told 911 that

22 D.I. 64 ar 34~37.
23 Trial Tr. a139:7-15.

19

Defendant, her “baby dad,” was outside the house, had a gun, was trying to shoot
her, and had fired shots.74 After Defendant left, Capers told 911 Defendant fled in
a silver rental car.75 Similarly, the child told 911 that her cousin’s baby dad was
outside the house with a gun, had fired a shot, and was trying to shoot the child’s

father and the child’s cousin.76

Beyond the non-testimonial, excited utterances
made by Capers and the child, Defendant admitted to police that he was at the
residence, he had an altercation with Capers’ uncle, and he fired a gun into the
air.77 Thus, although the officer’s recitation may have further incriminated
Defendant, the statements were insignificant in light of more prominent, and
probative, evidence submitted in the case.

For the foregoing reasons, it is not reasonably probable that, but for the
admission of Capers’ statements through the responding officer, the result of the
trial would have been different. Therefore, Defendant has failed to show prejudice
to support an ineffective assistance of counsel claim.

Ground Five
In his fifth ground for relief, Defendant asserts that appellate counsel

provided ineffective assistance when appellate counsel failed to raise the denial of

trial counsel’s motion for a judgment on acquittal on direct appeal. In support of

24 D.I. 65 ar A37-42.

23 Id.

23 1a at A48-49.

22 Triar Tr. at 61:12-62;21.

20

this assertion, Defendant reiterates the argument made by trial counsel at trial:
there was not a sufficient basis in fact for a finding of guilt as to the charges of
Aggravated Menacing and PFDCF.

“In reviewing a claim for insufficiency of evidence, the Court must
determine whether any rational trier of fact, viewing the evidence in the light most
favorable to the State, could find the defendant guilty beyond a reasonable doubt of
all the elements of the charged crime.”78 At trial, the State did not dispute trial
counsel’s assertion that the State had not produced direct evidence that Capers was
in fear of imminent physical injury.79 Accordingly, in its response to Defendant’s
motion for a judgment of acquittal, the State argued that its burden was met
through circumstantial evidence, including Capers’ statements to the 911
dispatcher that Defendant was trying to shoot her and the responding officer’s
testimony that Capers was in an excited and agitated state when he arrived at the
residence, Viewed in the light most favorable to the State, a rational jury could
conclude that Capers was in fear of imminent physical injury.

For the foregoing reasons, Defendant has failed to demonstrate prejudice on

this ground for relief.

78 Dunn v. State, 123 A.3d 471, 2015 WL 5032067, at *3 (Del. 2015) (TABLE) (citing
Williamson v. State, 113 A.3d 155, 158 (Del. 2015)).
23 Trral Tr. ar 70:3_71:10.

21

CONCLUSION
NOW THEREFORE, for the foregoing reasons, Defendant’s Amended
Motion for Postconviction Relief is DENIED.

IT IS SO ORDERED.

h
Jan. F. JurdeMresident Judge

22