IN THE SUPREME COURT OF THE STATE OF DELAWARE
JHAVON GOODE, §
§
Defendant Below- § No. 430, 2017
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ ID. No. 1404008621A (S)
Plaintiff Below- §
Appellee. §
Submitted: April 13, 2018
Decided: July 5, 2018
Before VALIHURA, VAUGHN, and SEITZ, Justices.
ORDER
Upon consideration of the parties’ briefs and the record on appeal, it
appears to the Court that:
(1) The appellant, Jhavon Goode, filed this appeal from the Superior
Court’s letter order, dated September 20, 2017, denying his first motion for
postconviction relief.1 After careful consideration, we find no merit to
Goode’s claims of ineffective assistance of counsel on appeal. Thus, we
affirm the Superior Court’s judgment.
1
State v. Goode, 2017 WL 4164421 (Del. Super. Sept. 20, 2017).
(2) The record reflects that a Superior Court jury convicted Goode
in January 2015 of Assault in the First Degree, Possession of a Firearm During
the Commission of a Felony, and Carrying a Concealed Deadly Weapon for
the shooting of Jason Terry. Before his scheduled sentencing date, police
officers discovered a gun, which was confirmed to match shell casings found
at the crime scene. The Superior Court postponed Goode’s sentencing to
allow defense counsel the opportunity to conduct further testing of the weapon
and, if warranted, to file a motion for a new trial.
(3) The DNA testing of the gun was not completed by the time of
the next status conference, so defense counsel requested another continuance.
The Superior Court denied the request and proceeded with sentencing, noting
that if testing yielded some result that might require a new trial, Goode could
raise the issue on appeal and request a remand. The Superior Court then
sentenced Goode to a total period of twenty-five years at Level V
incarceration, with credit for time served, to be suspended after serving
thirteen years in prison for decreasing levels of supervision. This Court
affirmed Goode’s convictions and sentence on direct appeal.2
(4) With the assistance of court-appointed counsel, Goode filed his
first timely motion for postconviction relief, raising four claims of ineffective
2
Goode v. State, 136 A.3d 303 (Del. 2016).
2
assistance of counsel. After obtaining trial counsel’s affidavit, the State’s
response, and Goode’s reply, the Superior Court rejected all of Goode’s
claims. This appeal followed.
(5) Goode raises three claims in his opening brief on appeal.3 First,
he contends that his counsel on appeal was ineffective for failing to challenge
the Superior Court’s denial of his proposed jury instruction regarding
eyewitness identification. Second, Goode contends that his trial counsel was
ineffective for eliciting prejudicial hearsay testimony from the victim during
cross-examination. Finally, he contends that his counsel was ineffective for
failing to file a motion for a new trial based on the results of additional testing
of the gun.
(6) This Court applies the Strickland4 standard in reviewing claims
of ineffective assistance of counsel in a timely first postconviction proceeding.
Under Strickland, Goode must demonstrate that: (a) his counsel’s conduct fell
below an objective standard of reasonableness; and (b) there is a reasonable
probability that, but for counsel’s unprofessional errors, the outcome of the
proceeding would have been different.5 Goode is required to set forth and
3
To the extent Goode raised other issues in the motion he filed in the Superior Court, he
has waived any right to further review of those claims on appeal by failing to argue them
in his opening brief. Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993).
4
Strickland v. Washington, 466 U.S. 668 (1984).
5
Id. at 687-88.
3
substantiate concrete allegations of cause and actual prejudice.6 Moreover,
there is a “strong presumption” that counsel’s representation was
professionally reasonable.7
(7) Goode’s first argument is that his counsel on direct appeal was
ineffective for failing to challenge the Superior Court’s refusal to give his
proposed jury instruction regarding eyewitness identification.8 The record
reflects that defense counsel requested that the Superior Court give the
following instruction on eyewitness identification:
An issue is this case is the identification of the defendant. To
find the defendant guilty, you must be satisfied, beyond a
reasonable doubt, that the defendant has been accurately identified,
that the wrongful conduct charged in this case actually took place,
and that the defendant was in fact the person who committed the
act. If there is any reasonable doubt about the identification of the
defendant, you must give the defendant the benefit of such doubt
and find the defendant not guilty.
Identification testimony is an expression of belief or
impression by the witness. Its value depends upon the opportunity
of the witness to observe the offender at the time of the offense,
retain that memory and to make a reliable identification later. In
appraising the identification testimony of Jason Terry you should
consider the following:
1. Whether Mr. Terry had the capacity and an adequate
opportunity to observe the offender, at the time of the offense.
6
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
7
Strickland v. Washington, 466 U.S. at 689.
8
In the Rule 61 motion he filed in the Superior Court, Goode also claimed that the Superior
Court’s denial of his proposed jury instruction violated his right to due process. The
Superior Court properly rejected that claim as procedurally barred under Rule 61(i)(4)
because it was previously adjudicated but neglected to address Goode’s contention that
appellate counsel was ineffective for failing to challenge the Superior Court’s ruling on
direct appeal.
4
Whether the witness had an adequate opportunity to observe
the offender at the time of the offense will be affected by such
matters as how long or short a time existed for the witness to make
an observation, the distance between the witness and the person
identified, lighting conditions, the witnesses [sic] attention,
whether the witness had occasion to see or know the identified
person previously.
2. Was the in-court identification made by Jason Terry
a product of his own recollection? You may consider both the
strength of the identification, and the circumstances under which
the in-court identification was made. If the identification by Jason
Terry [was] influenced by circumstances under which the
Defendant was presented to him for identification, you should
scrutinize the identification with great care. You may also consider
the length of time that lapsed between the occurrence of the crime
and the next opportunity for Jason Terry to see the Defendant as a
factor bearing on the reliability of the identification.
3. Finally, you must consider the credibility of Jason
Terry’s identification of the Defendant in the same way as any other
witness, considering whether they are truthful, and considering
whether they had the capacity and opportunity to make a reliable
observation on the matter in their testimony.
If you are not convinced beyond a reasonable doubt that the
Defendant was the person who committed the crime, you must find
the Defendant not guilty.
(8) The first paragraph of Goode’s proposed instruction reflected the
language of the Superior Court’s pattern jury instruction on eyewitness
identification. The additional paragraphs of the proposed instruction were
added by defense counsel, who conceded that, to counsel’s knowledge, such
an instruction had never been given to a Delaware jury. The Superior Court
rejected Goode’s proposed instruction in favor of giving the pattern
instruction. The Superior Court concluded that the pattern instruction was a
5
correct statement of the law and that the additional paragraphs constituted
argument that defense counsel could raise in his closing argument to the jury.
(9) A defendant has an unqualified right to have the jury instructed
with a correct statement of the substance of the law.9 But, a defendant is not
entitled to a particular jury instruction.10 This Court will not reverse a trial
court’s jury instruction on appeal if the instruction was “reasonably
informative” and not misleading when “judged by common practices and
standards of verbal communication.”11
(10) In Goode’s case, we find no merit to his postconviction claim
that his appellate counsel was ineffective on direct appeal for failing to
challenge the Superior Court’s denial of his requested instruction because the
underlying issue had no merit. Simply put, the Superior Court’s instruction
on eyewitness identification was a correct statement of the law,12 was
reasonably informative, and was not misleading. Any challenge to the
Superior Court’s instruction on appeal would have been rejected.
Accordingly, appellate counsel’s failure to raise this argument on direct
appeal was not ineffective.
9
Lloyd v. State, 152, A.3d 1266, 1271 (Del. 2016).
10
Id.
11
Phillips v. State, 154 A.3d 1146, 1160 (Del. 2017) (omitting citations).
12
See Garden v. State, 815 A.2d 327, 339 (Del. 2003) (upholding the Superior Court’s use
of the pattern jury instruction on eyewitness identification, which was substantially the
same as the one used in Goode’s case, as a correct statement of the law).
6
(11) Goode next contends that his trial counsel was ineffective in
cross-examining Jason Terry on the circumstances of his out-of-court
identification of Goode as the person who shot him. While in the hospital,
Terry told police he did not know the name of the man who shot him but that
he would recognize the shooter if he saw him again. Later, Terry’s cousin,
Raye Boone, showed Terry a Facebook photo of Goode and told him that
Goode had been overheard bragging about shooting someone. After seeing
the photo, Terry was sure Goode was the shooter. At trial, the following
exchange occurred during the prosecutor’s direct examination of Terry:
Q: How did [Boone] go about showing you this photo, what did
she say?
A: Well, these two individuals, after they shot me they had to go
around town and brag and tell everybody.
The Superior Court immediately admonished Terry not to testify about things
that other people said and instructed the jury to disregard the comments.
(12) Later, during defense counsel’s cross-examination of Terry, the
following exchange occurred:
Q: Let me go back. At Milford [hospital], you could not identify
who shot you?
A: I didn’t know, no. I never seen him before.
Q: You went to Christiana [hospital]?
A. Right
Q: Okay?
A: Right.
Q: You spoke with Detective Horsman.
A: Yes, sir. Right.
7
Q: And you still couldn’t identify him?
A: No, I could once I seen the picture on my cousin’s phone.
Q: Precisely. And the following day you see the picture on your
cousin’s phone?
A: No, the first day I saw the picture on my cousin’s phone at
Christiana. And that’s when I recognized him.
Q: Before or after you talked to Detective Horsman?
A: That was before I talked to Detective Horsman. She came there
and showed me the picture first. Then Detective Horsman
came and showed me the picture and was like, do you know
this person, because I had a picture on my phone, as well.
Q: Regardless, she shows you the picture and implies that this is
the person that shot you, correct?
A: No, she replies and she says we have an idea because they was
going around town, somebody was going around town
bragging about they shot somebody today. And they was in the
area…
Q: Let me stop you.
(13) Goode contends that defense counsel’s cross-examination of
Terry was constitutionally ineffective because counsel should have
anticipated the risk of eliciting Terry’s inadmissible and prejudicial hearsay
comment that “somebody was going around town bragging about they shot
somebody today.” Goode contends that defense counsel’s error incriminated
him and that defense counsel compounded his mistake by failing to request a
curative instruction.13
13
In rejecting this claim below, the Superior Court stated, “Defendant fails to mention that
the Court gave a sua sponte curative instruction immediately after the hearsay statements
were introduced.” State v. Goode, 2017 WL 4164421, at 2. While it is correct that the
Superior Court gave a curative instruction sua sponte after the hearsay statement was
elicited during the State’s direct examination of the witness, no curative instruction was
given after the same hearsay statement was elicited by defense counsel on cross-
examination. This statement is the subject of Goode’s present argument. The Superior
8
(14) In assessing the reasonableness of a defense attorney’s
challenged conduct, the United States Supreme Court held in Strickland that
judicial scrutiny of counsel’s performance “must be highly deferential” and
that every effort should be made “to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.”14 Goode
acknowledges that defense counsel’s goal in cross-examining Terry was to
undermine the reliability of Terry’s identification of Goode as the shooter by
suggesting that Terry could not name the shooter until his cousin showed him
Goode’s picture and suggested that Goode had done it.
(15) In reviewing defense counsel’s cross-examination of Terry as a
whole, we find trial counsel’s questioning to fall within “the wide range of
professionally competent assistance.”15 Defense counsel asked Terry,
“Regardless, she shows you the picture and implies that this is the person that
shot you, correct?” The question was narrowly focused and required a yes or
no response. We reject Goode’s contention that defense counsel erred by
failing to anticipate that Terry’s response to the question would include his
Court’s conclusion that Goode’s argument was procedurally barred under Rule 61(i)(4) as
previously adjudicated is incorrect because the statement at issue in Goode’s direct appeal
was the hearsay statement made during direct examination and was subject to the Superior
Court’s curative instruction.
14
Strickland v. Washington, 466 U.S. at 689.
15
Id.
9
cousin’s hearsay statement that “somebody was going around town bragging
[that] they shot somebody today.”
(16) Moreover, we reject Goode’s contention that defense counsel
erred by failing to request a curative instruction. Defense counsel responded
to Terry’s hearsay statement by interrupting Terry’s answer and rephrasing
the question, which prompted Terry’s affirmative response.16 We find
counsel’s choice to proceed in this manner, rather than interrupting his own
cross-examination by asking the trial judge to give a curative instruction, to
be entirely reasonable. Requesting a curative instruction would have drawn
the jury’s unwarranted attention to the hearsay testimony. Under the
circumstances, we conclude that counsel’s performance was well within the
bounds of reasonable professional conduct.
(17) Goode’s final argument on appeal is that his trial counsel was
ineffective for failing to file a motion for a new trial based upon the post-trial
test results of the gun, which yielded no DNA evidence.17 Goode argues that
16
Defense counsel’s next question after interrupting Terry’s response was, “She didn’t say
that, she shows you the picture and says, this is who we think shot you?” Terry replied,
“[y]es, and I identified the person because I know.”
17
On direct appeal, Goode argued that the Superior Court abused its discretion in denying
his request for a continuance to allow additional time to test the gun. We rejected that
claim. In his postconviction motion, Goode argued below and argues on appeal that his
trial counsel was ineffective for failing to file a motion for new trial based on the results of
the gun testing. Goode’s claim of ineffective assistance of counsel was not, and could not
be, raised in his direct appeal. Leacock v. State, 690 A.2d 926, 928 (Del. 1996). Thus, we
reject the Superior Court’s rationale that Goode’s ineffective assistance of counsel claim
10
the lack of DNA evidence connecting him to the gun supported a motion for
a new trial based on the insufficiency of the State’s evidence to prove him
guilty beyond a reasonable doubt.
(18) We disagree. First, as a factual matter, the laboratory report with
the test results was not completed until October 13, 2015. Goode’s trial
counsel had ceased representing Goode sometime in June 2015 after filing a
notice of appeal on Goode’s behalf. Goode pursued his appeal with the
assistance of privately-retained counsel. Thus, Goode’s trial counsel had no
continuing duty—indeed, had no right—to pursue any relief on Goode’s
behalf after his representation ended.
(19) More importantly, however, there simply was no reasonable
grounds for any lawyer to a file a motion for a new trial under these
circumstances. As we noted on Goode’s direct appeal, Terry’s testimony that
he was “one-hundred percent … sure” that Goode was the shooter—along
with a neighbor’s corroborating testimony placing Goode at the scene just
moments before the shooting—was more than sufficient to prove Goode’s
guilt beyond a reasonable doubt.18 The inconclusive post-trial test results
was procedurally barred by both Rule 61(i)(3), for his failure to raise the claim in the
proceedings leading to the judgment of conviction, and by Rule 61(i)(4), as previously
adjudicated.
18
Goode v. State, 136 A.2d at 314.
11
were not such evidence “as [would] probably change the result if a new trial
[were] granted.”19 Thus, even if a motion for a new trial had been filed, it
would not have been granted. Accordingly, Goode cannot establish cause or
prejudice to substantiate this ineffective assistance of counsel claim.
NOW, THEREFORE, IT IS ORDERED that the judgment of the
Superior Court is AFFIRMED.
BY THE COURT:
/s/ James T. Vaughn, Jr.
Justice
19
Downes v. State, 771 A.2d 289, 292 (Del. 2001).
12