State v. Coleman

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

Plaintiff, )

)

v ) Cr. ID. No. 1305011774A

)

)

DARRELL COLEMAN )
)

Defendant. )

Date Submitted: April 1, 2019
Date Decided: April 23, 2019

REPORT AND RECOMMENDATION ON
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF

Martin B. O’Connor, Deputy Attorney General, Delaware Department of Justice,
820 N. French St. 7th F100r, Wilmington, Delaware, 19801. Attorney for the State.

Patrick J. Collins, Esquire. COLLINS & ASSOCIATES, 716 North Tatnall Street,
Suite 300, Wilmington, Delaware, 19801. Attorney for Defendant.

MANNING, Judge:l

1 Sitting by designation as a Commissioner of the Superior Court pursuant to an Order signed by
the Chief Justice, October 26, 2018; Del. Const. Art. lV, § 38 and 29 Del. C. § 5610.

This 23“11 day of April 2019, upon consideration of defendant Darrell

Coleman’s Motion for Postconviction Relief, I find and recommend the following:
Facts and Procedural Historv

Coleman was convicted in the Superior Court following a jury trial on June 7,
2016, of Murder in the First Degree and Possession of a Firearm by a Person
Prohibited. Coleman’s conviction was upheld by the Delaware Supreme Court on
direct appeal. The facts surrounding the trial and conviction, as found by the
Delaware Supreme Court in its decision upholding the conviction, are as follows:

As part of a planned visitation, J.R. [Marvin Moore Jr.] spent
May 12, 2013 with his father, Marvin Moore, at Moore's residence at
Riverside in Wilmington. Moore was expected to return J.R. to his
mother that evening. ln the hours leading up to the time Moore was to
do so, he and Coleman, who was then the boyfriend of J.R.'s mother,
exchanged numerous phone calls. Finally, they arranged for Moore to
drop J.R. off at a Wawa near Memorial Drive in New Castle. Moore
drove toward the Wawa with J.R. and two of Moore's friends, Tierra
Battles and Dearius Riley, stopping first at the home of another friend
near the Wawa. As they approached the friend's home, Moore could be
heard on the phone angrily telling a male voice on the other end that he
was not going to let him pick up his son. After they arrived at the
friend's home, they decided that Battles and Riley would take J.R. over
to the Wawa while Moore remained at the friend's house.

When Battles and Riley arrived at the Wawa with J.R., Coleman
was there. Battles asked Coleman where J.R.'s mother was, and
Coleman asked Battles where Moore was. They then began arguing.
J.R. got in Coleman's vehicle, and Coleman followed Battles back to
her vehicle to continue arguing. At one point, Coleman said: “Tell
Marvin next time Marvin say something crazy out his mouth l be at his
front door.” Riley asked if Coleman wanted him to go get Moore, and

Coleman replied: “No. lf Marvin was a man, Marvin would have come
down.” Coleman then departed the Wawa with J.R. while Battles and
Riley returned to the friend's house.

When told about the confrontation, Moore responded: “I'm sorry,
but l got to go take care of my business,' and he was going to go meet
[Coleman] to fight.” Moore, Battles, and Riley then drove back to
Riverside, during which time Moore and Coleman were “snapping over
the phone” in a “heated” conversation. Finally, Moore and Coleman
arranged to meet near Peralta's Market in Riverside, which was about a
block and a half away from Moore's residence. When Coleman arrived,
he backed his vehicle down a one-way street and parked near Peralta's
Market. While traveling back to Riverside, Riley overheard Moore say
on the phone: “You already at the corner store, so I'll be there in a little
bit.”

After Moore, Battles, and Riley arrived back at Moore's house,
Moore walked to the sidewalk across the street from Peralta's Market.
Coleman then got out of his vehicle and ran diagonally back across the
street between two cars. Moore was then shot. Coleman ran back to his
car and took off. When police arrived at the scene, they determined that
Moore had one gunshot wound to the jaw and another one to his chest.
He also had an unfired revolver between his thighs.

Michelle Pflaumer, from the Children's Advocacy Center,
interviewed J.R. on May 13, 2013. J.R. discussed the previous day's
activities during his visitation with his father. He discussed being
driven to a gas Station by Battles and Riley and being picked up by
Coleman. Initially, J.R. told Pflaumer that Coleman took him to his
mother's home to sleep, but J.R. eventually said that Coleman took him
to the vicinity of his father's home in Riverside. He said that while
seated in Coleman's vehicle, he saw Coleman shoot his father.

The Wilmington Police were unable to locate Coleman in
Delaware. As a result, they enlisted the help of the U.S. Marshals
Service, which apprehended Coleman in Newark, New Jersey on May
31, 2013. In October of the same year, Coleman was indicted by a grand
jury on charges of Murder in the First Degree, Possession of a Firearm

During the Commission of a Felony, and Possession of a Firearm by a
Person Prohibited.

Trial commenced on October 20, 2014 and lasted five days. J.R.
was called as a witness by the State. On direct examination, he
discussed some events of the day and evening of the murder, but did
not mention, and was not directly asked, about seeing the shooting
itself. At the conclusion of his direct examination, the State moved for
the admission of his prior out-of-court statement under § 3507.
Coleman objected on the grounds that the State had not laid an adequate
foundation because J.R.'s testimony did not touch on the shooting. The
trial court overruled the objection, and the statement was played for the
jury.

[The Delaware Supreme Court upheld Coleman's conviction on
the grounds] that the other evidence of Coleman's guilt [was] so
overwhelming that any error in the admission of J.R.'s out-of-court
statement, if any, was harmless beyond a reasonable doubt. This
evidence included testimony from both Battles and Riley regarding the
heated exchanges between Coleman and Moore, which ultimately led
to the arranged rendezvous at Peralta's Market. A Riverside resident
testified that after she heard gunshots, she saw a man with dreadlocks
run to a dark colored sedan that sped away from the area. A police
officer also testified regarding the inability to locate Coleman within
Delaware and his ultimate apprehension in Newark, New Jersey.
Another police officer testified that the murder weapon, which was also
admitted as evidence, was found two days after the murder on the
northbound catwalk (toward New Jersey) of the Delaware Memorial
Bridge.

The State also introduced physical evidence. This included
surveillance video of: (l) Battles and Riley handing J.R. over to
Coleman at the Wawa; (2) Coleman arriving at Peralta's Market; and
(3) Coleman starting to leave Peralta's Market, stopping, running over
to where Moore'S body was later found, and running back to his car
before fleeing. Additionally, the State introduced phone records that
documented twenty calls between Coleman and Moore before the
murder. Those records also showed that Coleman stopped calling

Moore and turned his phone off after the shooting. Further, the State
produced cell phone tower maps that tracked Coleman's movement to
Wawa and then to Peralta's Market. The State also admitted Coleman's
mug shot showing that at the time of his arrest he still had dreadlocks
like the man seen running from the shooting and in the surveillance
videos. This evidence not only corroborated J.R.'s statement but also
corroborated the live testimony.2

Coleman filed the instant motion, pro se, pursuant to Superior Court Criminal
Rule 61, on July 5, 2016.3 The motion was subsequently referred to the undersigned
judicial officer. Rule 61 Counsel (hereinafter “Counsel”) Was appointed on July 18,
2016. Due to a shortage of available attomeys, Patrick Collins was not appointed as
Counsel until January 12, 2017. An initial briefing schedule was issued on January
24, 2017. At trial, Coleman was represented by Timothy Weiler (hereinafter “Trial
Counsel”). Counsel filed an Amended Motion for Postconviction Relief (hereinafter
the “Motion”) on July 25, 2017. Trial Counsel filed his Affidavit, responding to
Defendant’s Rule 61 claims, on August 23, 2017. The State filed its Response on
September 22, 2017. Coleman filed a Reply on October 27, 2017.

After reviewing the issues raised in Coleman’s Motion, l exercised my
discretion and ordered an evidentiary hearing pursuant to Rule 61(h), principally

related to the testimony offered at trial by the State’s ballistics expert, Carl Rone.

2 Coleman v. State, 2016 WL 3387192, 141 A.3rd 1037 (unpublished decision) (Del. 2016)`.

3 Docket ltem (hereinafter “D.I.”) #94.

Shortly thereafter, it was learned that Rone had been fired by the Delaware State
Police and charged with a number of crimes for falsifying time sheets. At the request
of Counsel, the evidentiary hearing was delayed a number of times so the
investigation could run its course. Ultimately, the evidentiary hearing was held on
August 22, 2018, and November 30, 2018. Neither side elected to call Rone as a
witness at the hearing, presumably due to the pending legal case against him. At the
hearing, Coleman testify on his own behalf and the State called Trial Counsel as its
only witness in rebuttal. Following a delay to obtain transcripts, post-hearing briefs
were filed by Coleman on January 23, 2019,4 and by the State on April 1, 2019.5
Coleman also filed an Appendix to his Post-Hearing Memorandum that contains

transcript and other exhibits.6

4 D.I. #124.
5 D.I. #127.

6 D.I. #125 (Appendix cited herein after as “Axxx”).

Coleman’s claims for postconviction relief, as stated in the Amended Motion,7
are as follows:

Claim One: Trial Counsel was ineffective for failing to challenge the
firearrn/toolmark evidence, resulting in constitutional
prejudice to Mr. Coleman.

Ground Two: Trial Counsel was ineffective for failing to litigate a Rule
609 motion, resulting in prejudice to Mr. Coleman.

As l will outline in greater detail below, the arguments put forth by Coleman
during the evidentiary hearing changed substantially from what was asserted in the
Amended Motion.

Lega| Standard

To prevail on an ineffective assistance of counsel claim, a defendant must
meet the two-pronged Strl`cklana' test by showing that: (l) counsel performed at a
level “below an objective standard of reasonableness” and that, (2) the deficient
performance prejudiced the defense.8 The first prong requires a defendant to show

by a preponderance of the evidence that defense counsel was not reasonably

competent, while the second prong requires the defendant to show that there is a

7 D.I. #108.

8 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).

reasonable probability that, but for defense counsel’s unprofessional errors, the
outcome of the proceedings would have been different.9

When a court examines a claim of` ineffective assistance of counsel, it may
address either prong first; where one prong is not met, the claim may be rejected

10 Mere allegations of ineffectiveness will

without contemplating the other prong.
not suffice_a defendant must make and substantiate concrete allegations of actual
prejudice.ll An error by defense counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of conviction if the error had no effect on the
judgment.12

In considering post-trial attacks on counsel, Strickland cautions that trial
counsel’s performance should be viewed from his or her perspective at the time
decisions were being made.]3 A fair assessment of attorney performance requires

that every effort is made to eliminate the distorting efforts of hindsight. Second

guessing or “Monday morning quarterbacking” should be avoided. 14

9 Id.
10 Id. at 697.
‘1 Younger v. Szaze, 580 A.2d 552, 556 (Del. 1990).

12 Strickland, 466 U.S.at 691.

13 lar

14 Id

Analysis

The procedural requirements of Rule 61 must be addressed before considering
the merits of any argument.15 Coleman’s Motion was timely filed and is not
repetitive, thus satisfying the procedural requirements of Rule 61. Therefore, the
Motion should be decided on its merits.

Claim One

Coleman claims Trial Counsel was ineffective because he failed to adequately
challenge the ballistics evidence offered by the State at trial through Rone’s
testimony. Specifically, Rone testified the five spent 9mm cartridge casings,
recovered from the scene of the crime had been fired from the 9mm handgun later
recovered by police on the Delaware Memorial Bridge. However, Rone could not
say if the two spent bullets (i.e. the actual projectiles) recovered from the victim had
been fired from the same 9mm handgun in light of their damaged condition.16 At
trial, Rone did opine that the two bullets recovered from the victim were in the same
“class” or family of ammunition that included 9mm, .3 80 and .357 calibers. Rone
could not definitively state the exact caliber of the two recovered bullets due to their

damaged condition.17

15 See Younger, 580 A.2d at 554.
16 D.I. #108 (Appendix to Amended Motion at A412).

'71d.atA421.

In support of his argument attacking Rone’s conclusions, Coleman presented
an expert report by Frederick M. Wentling, a Firearm and Tool Mark Examiner.18
Wentling opined that Rone, in essence, went too far in his testimony. Specifically,
Wentling opined that the bullets recovered from the victim were most likely .38
caliber, which will not fire from a 9mm handgun. Additionally, Wentling noted that
9mm bullets are normally metal jacketed but the projectiles recovered from the
victim were not. Wentling also opined that he believed that the bullets recovered
from the victim were similar to a UMC brand .38 caliber that is normally used in
revolvers. Finally, Wentling opined that the bullets recovered from the victim had
been discharged from a heavily worn or oversized barrel, a trait the recovered 9mm
handgun did not appear to display.

As to the unfired handgun recovered by police from the victim, Wentling
noted one of the cartridges displayed a light firing pin mark, and a second cartridge
displayed two light indent firing pin marks. Rone’s report also noted the firing pin
marks. Wentling opined that these marks evidenced that the handgun (a revolver)
was previously attempted to be fired three times without actually discharging a
projectile. Wentling expressed no opinion as to when this might have occurred or

exactly why.

18 D.l. #109 (Appendix to Amended Motion at A727).

Coleman argues, in his Motion, that Trial Counsel was ineffective because he
failed to challenge Rone’s testimony and failed to point out to the jury the fact that
an attempt to fire the gun found with the victim had been made at some point in time.
Coleman argues that this second piece of evidence would have bolstered a self-
defense claim, and Trial Counsel’s failure to properly and fully argue it, prejudiced
Coleman to an extent that there is a probability that the outcome of the trial would
have been different.

At trial, Coleman did not testify in his own defense. Nevertheless, Trial
Counsel did receive a self-defense jury instruction and did ask the jury to consider
it. However, during the majority of his closing argument, Trial Counsel focused his
attack on the fact that there was no evidence that Coleman had actually possessed or
fired the 9mm handgun and that of the at least four separate DNA samples recovered
from the gun, none of them matched Coleman.

lt appears Trial Counsel made the best argument to the jury he could-
reasonable doubt. F or this reason, I do not find that Trial Counsel’s failure to argue
that the firing pin marks somehow proved that Coleman acted in self-defense
prejudiced Coleman, under the circumstances Although in hindsight, this was
probably the better strategy, as discussed in more detail below, Coleman’s decision

hamstrung Trial Counsel’s ability to make the best possible argument.

10

Any failure of Trial Counsel to attack Rone’s ballistic conclusions was
rendered moot once Coleman testified at the evidentiary hearing. Rather than pursue
the argument presented as Claim One of the Motion at the evidentiary hearing,
Coleman testified and chose to present an entirely new theory as to why Trial
Counsel was ineffective.

At the evidentiary hear, Coleman testified that he had a very poor relationship
with Trial Counsel, that he lied to Trial Counsel about what actually happened and
that the two of them never discussed the possibility of asserting self-defense.19 ln
fact, Mr. Coleman testified that he did not know what a self-defense claim was, and
had been told by someone in the prison law library that Delaware did not have a self-
defense law. Coleman stated that his “lawyer wasn’t speaking to me about anything.”
Additionally, Coleman denied that Trial Counsel advised him that it would have
been helpful for him to testify to establish a self-defense claim.20 Coleman further
admitted lying to Trial Counsel when he told him he was at the scene of the crime
but did not shoot anymore. 21

Coleman testified, in details remarkably similar to what the State had

established during the trial, as to the events leading up the shooting. Coleman

19 I.D. #125 at A743-744 (Appended to Post-Hearing Memorandum).
20 Id_

21 Id.

11

admitted that he did in fact confronted Moore. Coleman testified that the two of
them exchanged words, but that Moore pulled a gun out and aimed it at him.
Coleman testified that he then pulled out his own gun and shot Moore.22 Coleman
stated that he feared Moore was going to shoot him. Coleman confirmed that J.R.
was in the car When the shooting occurred, along with a previously undisclosed
individual named only “Mooder.” Coleman confirmed that he fled to New Jersey
and attempted to toss the gun off of the Delaware Memorial Bridge after removing
the magazine from the gun. 23 Coleman testified that he was scared and did not want
to be stopped with the gun in his possession. Coleman testified that he was not aware
that Moore had died until weeks later. Finally, Coleman confirmed that this was the
testimony he would have offered had he testified at his original trial.24

Based on my review of the record, Coleman’s argument that Trial Counsel
did not adequately communicate with him and that he was unaware that Delaware
has a self-defense law is wholly unconvincing

Coleman’s assertions about Trial Counsel’s lack of representation is belied by
the record. As pointed out in the State’s Response, records indicate that Trial

Counsel visited Coleman prior to trial, on at least eight occasions. Additionally,

22 ld_ ar A 760.
23 Id. at A761.

24 Id. at A764.

12

Trial Counsel logged two video-phone interviews with Coleman and mailed him at
least forty items of discovery or letters. Most importantly, Coleman’s claim that
Trial Counsel never discussed the right to self-defense with him is disproven upon
review of the letters sent to Coleman and the contemporaneous notes made by Trial
Counsel after speaking with Coleman.

Specifically, on December 19, 2003, Trial Counsel wrote Coleman a detailed
letter explaining how the evidence did not support an “identity” defense and that the
State was actually expecting a self-defense argument due to the fact that the victim
was found with a loaded gun between his legs.25 Moreover, on August 21, 2014,
Trial Counsel and Coleman spoke via video-phone. Trial Counsel’s notes indicate
that “[Coleman] does not want self-defense.” On November 11, 2014, six weeks
before trial, Trial Counsel wrote Coleman a third letter, informing him in no
uncertain terms, that “[t]he most viable defense to you (although not 100% perfect)
is that you acted in self-defense. .. [and] that YOU BELIEVED the use of deadly
force was justified because YOU believed [it] was necessary for the purpose of

protecting yourself.” 26 Trial Counsel also mailed Coleman a copy of Guttierrez v.

25 D.I. #127 at Exhibir A.

26 D.I. #127 at p. 9 and Exhibit C.

13

State, 842 A.2d 650 (Del. 2004), a case that explained the law of self-defense in
Delaware.

At the evidentiary hearing, Trial Counsel testified that Coleman was “pretty
adamant” that “he was not present at the crime scene” for most of the representation
However, as trial approached, Coleman did finally admit to Trial Counsel that “he
was there [at the crime scene] but didn’t shoot anybody.” 27 At no point did Coleman
ever tell Trial Counsel that Moore had a gun or pointed it at him.

There are a number of problems with Coleman’s belated self-defense
testimony. First, it cannot_and indeed has not_been corroborated by any other
witness. Second, it is notable that Coleman did not offer any testimony during the
evidentiary hearing to establish that Moore had actually attempted to fire his gun
after pointing it at him. This notable omission makes the fact that two of the
cartridges in Moore’s gun had firing-pin indentations considerably less compelling.
Finally, as noted by the experts during trial, there is no way to know when the firing
pin indentations were actually made.

Additionally, as pointed out by the State in its Response to Defendant’s Post-
Hearing Memorandum, Coleman’s belated claim of self-defense presupposes that

the jury would have even found it credible.28 lndeed, the jury was presented with

27 I.D. #125 at A782-783 (Appended to Post-Hearing Memorandum).

281.D. #127.

14

the option to convict on multiple lesser included offenses and Trial Counsel
concluded his summation by arguing the law of self-defense to the jury. 29 In the
end, the jury rejected all of these options by its guilty verdict.

The law requires that there is a “reasonable probability” that the outcome of
the case would have been different but for Trial Counsel’s allegedly deficient
performance. Under Strl`ckland, the “probability” of a different outcome does not
mean a mere “possibility”_it is a higher standard. In Neal v. State, the Delaware
Supreme Court expounded on the Strickland burden of proof analysis under the
prejudice prong, it held:

A reasonable probability of a different result requires a
probability sufficient to undermine confidence in the outcome.
Although this standard is not mathematically precise and does
not necessarily require a showing of more likely than not,
Strickland requires more than a showing merely that the conduct
could have or might have or it is possible that it would have led
to a different result. The likelihood of a different result must be
substantial, not just conceivable. 30
Trial Counsel certainly could have made better use of the firing pin evidence

to support a self-defense claim, but without Coleman’s testimony, the most

important piece of such an argument was still missing. 31

29 A628.

30 Neal v. State, 80 A.3d 935, 942 (Del. 2013) (internal quotations and citations omitted).

21 Based on his testimony during the evidentiary hearing, it is unclear if Trial Counsel was aware
of the firing pin mark evidence at the time of the trial. Trial Counsel testified that he could not

15

Thus, the operative question becomes would the jury have acquitted Coleman
if they were also presented the firing pin evidence? 32 In my view, the answer is still
most likely no. l do recognize there is a possibility Coleman might have been
acquitted, but there is not a reasonable probability of it as required under Stricklancl.

The record in this case is abundantly clear that Trial Counsel recognized self-
defense as the best trial strategy and communicated this fact to Coleman on
numerous occasions. Inexplicably, Coleman refused to head Trial Counsel’s advice
and assist in presenting this defense. lt was Coleman’s obstinacy that prevented
Trial Counsel from making the very best argument he could for his client_not his
deficient performance Under these circumstances, even if Trial Counsel was
deficient for not also presenting the jury with the firing-pin evidence, l cannot say
to the required level certainty that it prejudiced Coleman and undermined the

reliability of the verdict.

recall, but that “if l had, l certainly would have brought it up.” A805. ln any event, there is no
doubt that Trial Counsel did not argue it to the jury.

32 Or, at a minimum, convicted him on some lesser-included offense.

16

Claim Two
Coleman’s second argument is that he did not testify at his first trial “because
he thought if the jury heard about his 2004 drug dealing conviction, they would think

” 33 More specifically, Coleman

he was guilty because they thought he was a felon.
argues that Trial Counsel’s performance was deficient because he did not file a Rule
609 motion to obtain a definitive ruling from the trial judge before Coleman made
his election not to testify.

ln his January 23, 2019, Post-Hearing Memorandum, Coleman seems to
bootstrap Claim One and Claim two. Coleman makes the argument that because
Trial Counsel could not conclusively advise him as to the admissibility of the 2004
conviction, he decided not to testify and was, therefore, denied the opportunity to
present his self-defense claim.

lt strains credulity to believe that even if Coleman had been told prior to trial
that the 2004 conviction would not be used against him, he would have suddenly
changed his long-held position and finally admitted to Trial Counsel that he shot
Moore in self-defense. As recognized by Counsel in his Post-Hearing

Memorandum, “Coleman did not make things easy for [Trial Counsel] pretrial,

because he held back crucial information from his attomey.” 34 lt is clear from the

33 D.I. # 124 atp.13.

34 D.l. #124 at p.12.

17

Evidentiary Hearing testimony that Trial Counsel and Coleman were not very
communicative during the trial itself and never had a “come to Jesus” meeting as the
evidence against Coleman mounted. However, even if they did, there is nothing in
the record, other than Coleman’s self-serving testimony during the evidentiary
hearing, to indicate that Coleman would have suddenly realized that Trial Counsel
had been correct all along and that he should head his advice. ln fact, based on the
October 13, 2014, letter sent to Coleman by Trial Counsel, it is evident that Coleman
had at one point in time actually planned to testify at his trial, but changed his mind
at some point. ln the letter, Trial Counsel listed a number of things for Coleman to
consider when making his decision to testify_his prior conviction not being one of
them. There is nothing in the record to indicate that Coleman was concerned about
his prior conviction prior to trial_this argument only came to light by Counsel
during the post-conviction phase of the case.

Coleman’s argument is predicated on the premise that he elected not to testify
based solely on the unresolved 609 issue. However, what is far more likely_as
evidenced by Trial Counsel’s letter_is that Coleman was more concerned that his
story of merely being present at the scene of the crime would not have held up very
well under intense cross-examination. Additionally, it is important to note that by
the time Coleman elected not to testify he had the opportunity to see the State’s entire

case against him_which was indeed overwhelming

18

Undoubtedly, it is certainly the best practice to litigate questions of evidence
admissibility prior to trial or making other strategy-related decisions. However, l
find it hard to fault Trial Counsel under the unique circumstance of this case.
Although Trial Counsel’s failure to litigate the admissibility of the 2004 conviction
was not the best practice, l find that it did not result in prejudice to Coleman because
this failure alone was unlikely to have changed the outcome of the trial as required
under Stricklana'. The evidence simply does not support Coleman’s argument that
he would have testified_and been acquitted_but for Trial Counsel’s failure to
litigate the 609 issue.

Conclusion
Coleman’s claims of ineffective assistance of counsel should be DENIED.

IT IS SO RECOMMENDED.

Bradley V. l\/l-€:n/ning,?l
Judge

OC: Prothonotary
cc: Counsel via e-mail

19