State v. Pumphrey

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)
) Def. I.D. # 1611016239
v. )
)
)
ELTON PUMPHREY, )
)
Petitioner/Defendant. )

Submitted: September 14, 2020

Decided: October 19, 2020

Upon Petitioner’s Motion for Postconviction Relief (R-1)
DENIED
Upon Petitioner’s Motion to Strike Portions of Trial Counsel’s Affidavit

DISMISSED AS MOOT

MEMORANDUM OPINION AND ORDER

Elton Pumphrey, James T. Vaughn Correctional Center, 1181 Paddock Road,
Smyrna, DE 19977; Petitioner/Defendant.

Patrick J. Collins, Esquire, Collins & Associates, Patrick J. Collins, Esquire, 8 East
13" Street, Wilmington, DE 19801; Attorney for Petitioner/Defendant Elton
Pumphrey.
Amanda Nyman, Esquire; Deputy Attorney General, Department of Justice, 114
East Market Street, Georgetown, DE 19947; Attorney for State of Delaware.

KARSNITZ, J.
MOTION FOR POSTCONVICTION RELIEF

I. INTRODUCTION

On June 10, 2019, Elton Pumphrey (‘Petitioner,’ “Defendant,” or
“Pumphrey”) filed a timely Motion for Postconviction Relief.! This Court
approved Petitioner’s request for the appointment of counsel? and
postconviction counsel was assigned to the case? On June 12, 2020,
Petitioner filed his Amended Motion for Postconviction Relief (the “Rule 61
Motion”).4 On July 8, 2020, Petitioner’s trial counsel (“Trial Counsel”) filed
an affidavit of trial counsel (“Trial Counsel’s Affidavit”)° under Superior
Court Criminal Rule 61.° On August 17, 2020, the State filed its Response
to the Rule 61 Motion (the “Response”’).’ On September 14, 2020, Petitioner
filed two pleadings: his Reply to the Response and Trial Counsel’s Affidavit

(the “Reply’’)®’, and a Motion to Strike Portions of Trial Counsel’s Affidavit

1 4667-68 1.

2 A686.

3 Al0-11; D.I. 109.

4D. 111.

>D.J. 112.

® Super. Ct. Crim. R. 61(g).
7D. 113.

8D. 115.
(the “Motion to Strike”).? On September 23, Petitioner filed his own

affidavit (“Petitioner’s Affidavit”).'°

After a full review of the record and the pleadings, I find that Petitioner has
failed to satisfy either the performance part or the prejudice part of the two-part test
set forth in Strickland v. Washington'' (“Strickland”), as adopted in Delaware and
as discussed more fully below, as to his allegations of ineffective assistance of Trial
Counsel.

I further find that, based on the record of the pretrial, trial and appellate
proceedings in this case, and the Rule 61 Motion, the Response, the Reply, Trial
Counsel’s Affidavit and Petitioner’s Affidavit, that Petitioner is not entitled to relief.
Thus, the record need not be further expanded, no further pleadings need be filed by
the parties, and no evidentiary hearing need be held.

The Rule 61 Motion is DENIED.

I finally find that the Motion to Strike is moot, because I have excluded from
my consideration those portions of the Trial Counsel’s Affidavit that Petitioner seeks
to strike, and nonetheless Petitioner is not entitled to relief.

The Motion to Strike is DISMISSED AS MOOT.

9 DA. 114.
ODT. 117.
'1 466 U.S. 668 (1984).
II. BACKGROUND

A. PROCEDURAL HISTORY

On November 25, 2016, police from Troop 4 swore out an arrest warrant
for Petitioner, charging him with Offensive Touching, Carjacking, and Robbery
First Degree (Victim over 62).'? Petitioner turned himself in on the warrant on
that date.'’ The Court of Common Pleas held a preliminary hearing on December
15, 2016; the judge found probable cause and transferred the case to Superior
Court.'*| On January 23, 2017, a grand jury returned an indictment against
Petitioner for the same three charges.!°

Michael Capasso, Esquire, originally represented Petitioner. Petitioner
refused video arraignment'® and filed a motion to disqualify counsel.!” That
motion was rendered moot when Trial Counsel, Jeffrey P. McLane, entered his
appearance. |®

On April 3, 2017, Petitioner rejected an offer to plead guilty to

Carjacking.'? At the final case review on June 7, 2017, Petitioner rejected a

2 AL.

13 A4].

14 464-66.

15 468-69.

16 Al; DL 6.
17 Al; D.I. 7.
18 Al; DUI. 8.

19 470.
second offer to plead guilty to Carjacking Second Degree with an habitual
offender sentence of five years and Robbery Second Degree, with a
recommendation for probation.*° The next day, June 8, 2017, the Court held a
hearing on a motion to exclude the eyewitness identifications.2! The judge
denied the motion.”

The case proceeded to a jury trial beginning June 12, 2017. The State
presented evidence for two days. At the conclusion of the State's case, the
defense presented a motion for judgment of acquittal,”?> which the trial judge
denied.”* The defense did not present a case. The jury deliberated for two
hours”® before finding Petitioner guilty of all three charges.”” Because two of the
charges have minimum mandatory sentences, the trial judge revoked Petitioner’s
bail.”

On June 15, 2017, the day after the verdict, the State filed a motion to

declare Petitioner an habitual offender on both the Carjacking and Robbery First

20 A72-73.
2143; D.1.28.
22 A3; DI. 29.
23 A 363-366.
24 A368.

25 A374,

26 A 429-430.
27 4430-432.
28 A432.
Degree charges.”’

On June 20, 2017, Trial Counsel filed a Motion for Judgment of Acquittal,
although procedurally it was a renewal of the trial motion.*° The State filed its
response on July 6, 20172! On July 27, 2017, the judge convened an office
conference regarding the motion. The judge granted the defense the opportunity to
obtain a transcript and file a written amendment to the motion.*?

The defense did not supplement the motion but rather filed a Motion for
New Trial on August 4, 2017.°2 The State responded on August 11, 2017,
arguing in part that the motion was untimely filed.*4 The judge convened an
office conference regarding the pending motions on September 12, 2017. The
judge denied the motion as untimely but also denied it on substantive grounds.*°
The Court reserved decision on the motion for judgment of acquittal.°° By letter
order on December 21, 2017, the judge denied that motion.*’

The defense opposed the State's habitual offender motion, asserting that

29 4460-463.
30 4464-471,
31 4472-477.
32 A 483.1

33 4487-495.
34 4496-509.
35 4514-515.
36 4521-522.
37 4524-525.
the motion failed to cite the requisite number of prior felonies.**
Alternatively, the defense urged the Court to sentence Petitioner based on 11
Del. C. § 4214(a) rather than 11 Del. C. § 4214(c).°? The State responded,
arguing that Petitionerhad already been sentenced as an habitual offender in 2011
and remained so.*? The Court sentenced Petitioner on February 9, 2018. The
Court resolved the controversy by sentencing Petitioner under 11 Del. C. §
4214(a).*! The Court imposed a sentence of 16 years of Level V time, followed
by descending levels of supervision.*”

Petitioner, now represented by Nicole Walker, Esquire ("Appellate
Counsel"), filed an appeal to the Delaware Supreme Court. The State conceded
that Offensive Touching is a lesser-included offense of Robbery First Degree
and conceded that insufficient evidence existed for a separate charge of
Offensive Touching.” On February 28, 2019, the Supreme Court affirmed

Petitioner’s convictions and sentence, except for the Offensive Touching charge,

which it vacated.*4 On March 26, 2019, Petitioner appeared before this Court

38 4526-528.

39 A528.

40 4530-531.

41 A533.

42 4546-548; A549-555.

3 A604.

4 Pumphrey v. State, 2019 WL 507672 (Del. Feb. 8, 2019); A644-649.

6
to be resentenced.** For all intents and purposes, vacating the Offensive
Touching conviction had no effect on the sentence.*° It appears this Court did

correct the credit time on the original sentence, however.*’

B. STATEMENT OF FACTS

On direct appeal, the Delaware Supreme Court provided an overview of the

facts:

Defendant Elton Pumphrey appeals his
conviction of Carjacking in the First Degree,
Robbery in the First Degree, and Offensive
Touching. Those convictions result from an
incident on November 21, 2016, when a sixty-
four-year-old Jeffrey Lessig, Sr. agreed to give
Pumphrey a ride home. As Lessig drove
Pumphrey home, he slowly pulled into a cul-de-
sac to ask Pumphrey for further directions.
Pumphrey then pulled the keys out of the
ignition, grabbed Lessig's face and threatened to
rob him, and, when Lessig stated that he had no
money, he took Lessig's car keys and cell phone
and exited the vehicle. Lessig also left his vehicle
and approached a bystander to ask for help. As
Lessig sought help, Pumphrey re-entered the
vehicle and drove away.*®

Then the Court went on to describe the case in further detail:

45 4650-658.

4© 4659-666.

47 A655.

48 Pumphrey v. State, 2019 WL 507672 at *1 (Del. Feb. 8, 2019); A644.
On November 21, 2016, Lessig received a call
from his granddaughter notifying him that the
water heater in her manufactured trailer home,
which she rented from Lessig, had
malfunctioned. She also stated that there was a
man looking at the water heater who wanted to
speak with Lessig. When Lessig arrived at the
home in the Cool Springs Farms development,
he saw his grandson standing outside the home
along with three other men. Inside the home,
one of the men-later identified as Pumphrey--
-offered to repair the water heater for $40.
Lessig declined the offer and walked outside
toward his two-seat Mazda Miata. At this
point, the parties’ stories diverge.

The State alleges that Pumphrey asked Lessig
for a ride, and, with Lessig's permission, he
entered the car and gave directions as Lessig
drove. After Lessig turned onto a cul-de-sac
and asked Pumphrey where he lived, Pumphrey
pulled the keys out of the ignition and twice
threatened to rob Lessig-once grabbing him by
the face. Lessig gave Pumphrey his empty
wallet and told him that he had no money.
Pumphrey then took Lessig's keys and mobile
phone as he exited the car. Lessig also left the car
and approached a man nearby who let him use his
cell phone to call the police. During that time,
Pumphrey got back into Lessig's car and drove
away. The bystander stayed with Lessig until
Trooper Murray, the responding police officer,
arrived.

Murray canvassed the neighborhood and asked a
local resident if he had heard who committed the
crime. The resident began pronouncing a word
starting with "B," but was unable to think of the
full name. Murray then suggested that it might
be "Boyer," a name affiliated with crime in the
Cool Springs Farms area, which the resident
confirmed. Murray included the possible
"Boyer" suspect in his contemporaneous notes.
The next day, Detective Doughty took over the
investigation and reviewed Murray's police
report. Doughty thought that the section of the
report concerning Boyer was vague, so he
emailed Murray instructing him to "clean it

up.

Police also interviewed Lessig's grandson, who
said that "Bowl" was the man inside the trailer
home looking at the hot water heater. Another
individual in the Cool Springs Farms
development told Doughty that "Bowl" was
Pumphrey's nickname. Lessig described the
perpetrator as a black male between 6'2" to 6'4"
and 200 to 210 pounds. Lessig's grandson
provided a similar description of the man
looking at the water heater, describing him as
a black male who was 6'4" to 6'5", 220 to 230
pounds, and appeared to be in his forties.

After obtaining Pumphrey's name, Doughty
created a six-photo lineup using Pumphrey's
mugshot and pictures of men of similar
appearance. Doughty did not pursue an
investigation of "Boyer" because he did not fit the
general description of the suspect. Further, the
trial court found that there was no evidence that
Boyer was in the area at the time of the offense.

Doughty conducted the photo identification at
Lessig's trailer home two days after the
incident occurred, which he audiotaped in its
entirety. First, Doughty presented the photo
lineup to Lessig's grandson, who identified
Pumphrey "with not a doubt in [his] mind,"
"110%" as "the person who jacked my pop."
Doughty then presented the photo lineup to
Lessig in the kitchen, while his grandson
remained in the living room. Lessig told
Doughty that he was not certain he could
identify the perpetrator. Lessig's grandson can
be heard on the audiotape encouraging him to
look at the photo lineup. Doughty explained
that the perpetrator was not necessarily in the
lineup and that, if Lessig did not see him, he
should not feel compelled to make an
identification.

Doughty then showed Lessig the photo lineup
and Lessig identified Pumphrey as_ the
perpetrator, although he told Doughty that he
did not think Pumphrey wore glasses during the
incident, as Pumphrey did in his mugshot.

Doughty obtained an arrest warrant for
Pumphrey, who turned himself in the same day.
In his interview with Doughty, Pumphrey
offered a different account of the events. He
admitted that he was in the trailer home with
Lessig and Lessig's grandson to examine the
water heater, that he drove the car after
borrowing it from Lessig, purchased liquor
while driving the car, and later abandoned the
car on the side of the road after it broke down
without notifying Lessig. He further asserted
that those events took place the day after Lessig
was carjacked by a different person.”

4° Pumphrey at *1-2; A644-645.

10
Ill. DISCUSSION

A. PROCEDURAL BARS UNDER RULE 61(i).

Before addressing the merits of the Rule 61 Motion, I first address the four
procedural bars of Superior Court Criminal Rule 61(i).°° If a procedural bar exists,
as a general rule I will not address the merits of the postconviction claim.*! Under
the Delaware Superior Court Rules of Criminal Procedure, a motion for post-
conviction relief can be barred for time limitations, successive motions, failure to
raise procedural claims earlier in the proceedings, or former adjudication.”

First, a motion for postconviction relief exceeds time limitations if it is filed
more than one year after the conviction becomes final, or if it asserts a retroactively
applicable right that is newly recognized after the judgment of conviction is final,
more than one year after the right was first recognized by the Supreme Court of
Delaware or the United States Supreme Court. In this case, Petitioner’s conviction
became final for purposes of Rule 61 at the conclusion of direct review when the

Delaware Supreme Court issued its mandate on February 28, 2019.>* Petitioner filed

° Ayers v. State, 802 A.2d 278, 281 (Del.2002) (citing Younger v. State, 580 A.2d 552, 554 (Del.
1990).

>! Bradley v. State, 135 A.3d 748 (Del 2016); State v. Page, 2009 WL 1141738, at*13 (Del.
Super. April 28, 2009).

52 Super. Ct. Crim. R. 61(i).

53 Super. Ct. Crim. R. 61(i)(1).

“DL 96.

11
his first motion for postconviction relief on June 10, 2019. Therefore, consideration
of that first motion is not barred by the one-year limitation of Rule 61(i)(1).

Second, second or subsequent motions for postconviction relief are not
permitted unless certain conditions are satisfied.55 Since this is Pumphrey’s first
Rule 61 Motion, this bar does not apply.

Third, procedural grounds for relief “not asserted in the proceedings leading to
the judgment of conviction” are barred unless the movant can show “cause for relief”
and “prejudice from [the] violation.”°® Pumphrey does not assert procedural grounds
for relief not asserted in the proceedings leading to the judgment of conviction. Thus,
this bar does not apply in this case.

Fourth, grounds for relief formerly adjudicated in the case, including
“proceedings leading to the judgment of conviction, in an appeal, in a post-conviction
proceeding, or in a federal habeas corpus hearing” are barred.°’ Pumphrey’s grounds
for relief are based on claims of ineffective assistance of counsel. It is well settled
Delaware law that, as collateral claims, ineffective assistance of counsel claims are
properly raised for the first time in postconviction proceedings.°* Thus, this bar does

not apply in this case.

°5 Super. Ct. Crim. R. 61(i)(2)
°6 Super. Ct. Crim. R. 61(i)(3).
>7 Super. Ct. Crim. R. 61(i)(4).
8 State v. Schofield, 2019 WL 103862, at *2 (Del. Super. January 3, 2019); Thelemarque v. State,
2016 WL 556631, at *3 (Del. Feb. 11, 2016) (“[T]his Court will not review claims of ineffective

12
Finally, the four procedural bars to do not apply either to a claim that the Court
lacked jurisdiction or to a claim that pleads with particularity that new evidence exists

? or that a new retroactively

that creates a strong inference of actual innocence,>
applied rule of constitutional law renders the conviction invalid.°° Pumphrey does
not claim that he has new evidence that creates an inference of his actual innocence,
or that a new retroactively applied rule of constitutional law renders his conviction
invalid.

Thus, none of the procedural bars under Rule 61 applies in this case, and I will

consider Pumphrey’s claims on the merits.

B. PETITIONER HAS FAILED TO DEMONSTRATE THAT HIS REPRESENTATION
BY TRIAL COUNSEL WAS INEFFECTIVE.

Petitioner brings three claims based on ineffective assistance of his Trial
Counsel, and a fourth claim of the cumulative effect of those three claims, which
claims are assessed under the two-part standard established in Strickland v.
Washington,®! as applied in Delaware. Under Strickland, Defendant must show

that (1) Trial Counsel’s representation “fell below an objective standard of

assistance of counsel for the first time on direct appeal.”); Watson v. State, 2013 WL 5745708, at
*2 (Del. Oct. 21, 2013) (“It is well-settled that this Court will not consider a claim of ineffective
assistance that is raised for the first time in a direct appeal.”).

5° Super. Ct. Crim. R. 61(i)(5).

6° Super. Ct. Crim. R. 61(d)(2)(i) and (ii).

61 466 U.S. 668 (1984).

® Albury v. State, 551 A.2d 53 (Del. 1988).

13
reasonableness” (the “performance part”); and (2) the “deficient performance
prejudiced [his] defense.” (the “prejudice part”).® In considering the performance
part, the United States Supreme Court was mindful that “[S]trategic choices made
after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Strickland requires an objective analysis, making
every effort “to eliminate the distorting effects of hindsight” and to “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.”® “[S]trategic choices about which lines of defense to
pursue are owed deference commensurate with the reasonableness of the
professional judgments on which they are based.”

As to the performance part, Petitioner must demonstrate that Trial Counsel’s
(1) failure to seek redactions to Petitioner’s statement (which allegedly contained
vouching), (2) statement to the jury, and implication while questioning witnesses,
that Petitioner had a criminal history, and (3) general trial strategy, as discussed more
fully below, were unreasonable decisions. In my view, Trial Counsel’s decisions

were reasonable strategic decisions under the performance part of the Strickland test.

63 Jd. at 687.
64 Td. at 690.
6 Jd. at 689.
66 Td. at 681.

14
As to the prejudice part, Petitioner must demonstrate that there exists a
reasonable probability that, but for Trial Counsel’s unprofessional errors, the
outcome of the trial would have been different.°’ Even if Trial Counsel’s
performance were professionally unreasonable, it would not warrant setting aside
the judgment of conviction if the error had no effect on the judgment. A showing
of prejudice “requires more than a showing of theoretical possibility that the
outcome was affected.”©

Strickland teaches that there is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in a particular order, or even to address both
parts of the inquiry if the defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant because of the alleged
deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, that course should be followed.”° In every case, the court
should be concerned with whether, despite the strong presumption of reliability, the
result of the particular proceeding is unreliable because of a breakdown in the

adversarial process that our system counts on to produce just results.”!

67 Albury, at 687; Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003); Wright v. State, 671 A.2d
1353, 1356 (Del. 1996).

68 Strickland, at 691.

8 Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992).

10 Strickland, at 697.

7) Td. at 696.

15
In this case, Petitioner has not demonstrated that there exists a reasonable
probability that, but for Trial Counsel’s alleged errors, the outcome of the trial would

have been different.

Claim I — Non-Redaction of Petitioner’s Statements

Petitioner alleges that Trial Counsel provided ineffective assistance to him
by failing to seek redactions to Petitioner's statement that had previously been
given to the police, which contained alleged impermissible vouching for a State
witness.’”” In responding to this claim, Trial Counsel states that "Pumphrey
advocated for this very strategy in order to advance the defense theory of sloppy
and misleading police work in order to receive the benefit of a jury instruction
on the lesser included offense of Unauthorized Use of a Motor Vehicle
(“UUMV”).”” The defense theory was that Petitioner “borrowed” the car on a
different date, and thus there must be a third person (“Boyer”) who committed
the carjacking on the date in question. Although the jury was given the UUMV
instruction, it chose not to accept the defense theory, and found Petitioner guilty
of Carjacking Second Degree.

In support of this theory, the Superior Court Judge presiding over the trial

? Rule 61 Motion at 30.
® Trial Counsel’s Affidavit, paragraph entitled “Ground One: Denied.”

16
"found that trial counsel ... effectively argued to the jury that there was another
suspect that the police decided not to pursue."”*

The Delaware Supreme Court addressed Petitioner's contention that the
introduction of the detective's comments during Petitioner's police interrogation
constituted improper vouching.”° In Petitioner's direct appeal, the Supreme Court
found that Petitioner's argument had been waived.’ The Supreme Court found
that Trial Counsel offered no objection to admitting the interrogation video into
evidence, yet objected immediately afterwards when the State asked the detective
to "explain the consistencies and inconsistencies" between the differing versions
of the witnesses’ accounts.”’ The trial court sustained Petitioner's objection, and
instructed the jury that it is their "duty and responsibility to determine the facts"
and resolve contradictions in testimony."”* The Supreme Court noted that Trial
Counsel also proposed redactions of other interviews, but not of Petitioner's
interview, suggesting that Petitioner strategically chose not to redact the

vouching. ’? Therefore, the Supreme Court found that Petitioner's argument had

been waived.®°

74 Pymphrey v. State, 204 A.3d 828, *5 (Del. 2019); Rule 61 Motion A644-649.

13 Pumphrey v. State, 204 A.3d 828, *6 (Del. 2019); Rule 61 Motion A644-649.
76 Id.

77 Id.

78 Td.

a Pumphrey y. State, 204 A.3d 828, FN 30 (Del. 2019); Rule 61 Motion A644-649.

80 Pumphrev v. State, 204 A.3d 828, *6 (Del. 2019); Rule 61 Motion A644-649.

17
Taking all of this into consideration, it is clear to me that Trial Counsel
made a’strategic decision to not seek redactions of Petitioner's police interview
in order to argue that the police, in his opinion, did not complete a full investigation
before deciding that Petitioner was the culprit. In my view, Trial Counsel's

strategic decision was reasonable.

Claim II — Reference to Petitioner’s Criminal History

Petitioner alleges that Trial Counsel provided ineffective assistance to him
because he referred to Petitioner's criminal history and fingerprint record during

trial.8! Trial Counsel counters that

Mr. Pumphrey requested counsel to weave a
coherent story of faulty police work around the
issues with his claimed innocent and lawful act
of borrowing a car at a different time from the
carjacking itself. Todoso, counsel was required
to address the lack of fingerprints in the context
of the very large number of prints found on
Lessig's automobile.”

In addition, Trial Counsel states that

[p]art of the overall mistake trial strategy was to
emphasize the lack of prints identifiable with
Pumphrey at the time Lessig's car was
discovered in spite of his prints residing in the
identification system. DSP reported at least
twice that 11 fingerprints of value were

81 Rule 61 Motion at 34.
82 Trial Counsel’s Affidavit at § 23.

18
recovered from the car yet no _ further
investigation tied the prints to Pumphrey. Here,
the logical inference could have been that Boyer
or any of the multiple black males described at
trial took the car from Lessig.®

Therefore, admitting that Petitioner had acriminal record and fingerprints in
the system was a strategic decision made by Trial Counsel to highlight that
Petitioner's fingerprints were not found in Lessig's car, and this strategic decision

was reasonable.

Claim III — Unreasonable trial Strategy
Petitioner alleges that Trial Counsel provided ineffective assistance to him
because Trial Counsel pursued an unreasonable trial strategy.24 Trial Counsel's

response is that he

parsed through the trial record to criticize the
defense highlight of DSP's incorrect timing; lack of
fingerprints; failure to record interviews; failure to
dust for prints within the Lessig residence; lack of
DNA from the liquor bottle found in Lessig's car;
lack of bystander interviews; the so called
"phantom" Boyer suspect (an actual person from the
area of the offense); and the lack of an array for this
phantom (who is_ apparently known to
postconviction counsel to stand 5' 7”).®°

83 Trial Counsel’s Affidavit at § 24.
84 Rule 61 Motion at 34.
85 Trial Counsel’s Affidavit at § 28.

19
Petitioner has submitted an affidavit in which he states that, after reviewing
Trial Counsel’s Affidavit, he agrees that he did not want to accept the State’s offer to
plead guilty, and he did not want to testify at trial, because he did not want the jury
to hear about his criminal history. However, he denies that he ever directed Trial
Counsel to pursue any particular trial strategy, including a trial strategy of attempting
to obtain a conviction for a lesser included offense of UUMV.*’ Although Petitioner
now finds fault with Trial Counsel's strategy because he was convicted, according to
Trial Counsel, Petitioner requested Trial Counsel to use this very strategy.*®
Petitioner cannot now take a different position with the benefit of hindsight.
Furthermore, Petitioner is unable to overcome the Strickland presumption that Trial
Counsel used a reasonable trial strategy.
Claim IV — Cumulative Effect of Claims I, II and III

Finally, Petitioner argues that the cumulative effect of Trial Counsel's
alleged errors caused him prejudice.*? However, even if I were to find that Trial
Counsel's performance was below an objective standard of reasonableness,
Petitioner is unable to show that redacting his interview, not mentioning his

criminal history or fingerprint record, and pursuing a different trial strategy

86 Petitioner’s Affidavit at 1.

87 Id.

88 Trial Counsel’s Affidavit at § 23.
89 Rule 61 Motion at 44.

20
would have led to a different result; i.e., not being convicted as charged attrial.
Here, the evidence against Petitioner was found by the trial court judge to be

“significantly overwhelming."”

IV. MOTION TO STRIKE

In his Motion to Strike, Petitioner argues that, in Trial Counsel’s Affidavit,
Trial Counsel breached his duty of confidentiality and his duty of loyalty to
Petitioner, his former client. Petitioner cites the Delaware Rules of Professional
Conduct,”! the ABA Standards for Criminal Justice,°? and ABA Formal Ethics
Opinion 10-456.” The gravamen of Petitioner’s argument is that Trial Counsel
went beyond the disclosures necessary to rebut claims of ineffective assistance of
counsel and advocated a position against his former client's legal position.
Specifically, Petitioner objects to the following paragraphs of Trial Counsel’s
Affidavit, in whole or in part: 6, Ground One: Denied, 10, 14, 15, 16, 17, 19, 25,

26, 29, 30, 31 and 33.

°° Pumphrey v. State, 204 A.3d 828, "'S (Del. 2019); Rule 61 Motion A644-649.
°! Del. Lawyers’ R. Prof?] Conduct 1.6, 1.7 and 1.9, and Official Comments thereto.

°2 These standards have been held by the United States Supreme Court and the Delaware Supreme
Court as the prevailing norms of practice. See, Padilla v. Kentucky, 559 U.S. 356,366 (2010);
Harden v. State, 180 A.3d 1037, 1046 (Del. 2018). Petitioner cites specifically ABA Standard
4-1.3(b) (Continuing Duties of Defense Counsel) and ABA Standard 4-9.6(d) (Challenges to
the Effectiveness of Counsel).

°3 ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 10-
456, "Disclosure of Information to Prosecutor When Lawyer's Former Client Brings
Ineffective Assistance of Counsel Claim" (July 14, 2010).

21
I agree with the precepts set forth in the Delaware Rules of Professional
Conduct, the ABA Standards for Criminal Justice and ABA Formal! Ethics Opinion
10-456, that Trial Counsel generally has a continuing duty of confidentiality and
loyalty with respect to Petitioner, except to the extent necessary to respond to
allegations of ineffective assistance by Trial Counsel. There are no claims
against Trial Counsel, and he is not a party to the Rule 61 Motion. The issue in
a collateral claim for relief like a Rule 61 Motion is whether Petitioner’s
constitutional right to the effective assistance of counsel was violated. Trial
Counsel may not advocate for the denial of Petitioner’s claims on the merits,

because the legal controversy is not between the client and the lawyer.”

However, it is unnecessary for me to opine on whether the fourteen
passages from Trial Counsel’s Affidavit cited by Postconviction Counsel are, or
are not, ethical violations, for several reasons. First, I am loathe to consider
ethical violations alleged by Petitioner against a lawyer who is not a party to the
Rule 61 Motion, and who has not had a chance to respond to the allegations,
particularly if such consideration is unnecessary for the disposition of the case.
Second, cases should be decided on the narrowest possible grounds, and

consideration of the alleged ethical violations is unnecessary to the disposition

4 Del. Lawyers’ R. Prof’] Conduct 1.6(b)(5); ABA Formal Opinion 10-456 at 3-4 (2010).

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of this case. I have excluded all of the disputed passages; they are not cited in
this opinion, nor have I considered or relied on them in any way in rendering
this opinion. In my view, and without deciding the ethical issues either way,
even with the exclusion of the disputed passages, and based on the record of the
pretrial, trial and appellate proceedings in this case, and the Rule 61 Motion, the
Response, the Reply, Trial Counsel’s Affidavit (excluding the disputed passages)
and Petitioner’s Affidavit, Petitioner is not entitled to relief under the Strickland

standards, as discussed above.

Vv. CONCLUSION
Therefore, Petitioner Elton Pumphrey’s Motion for Postconviction Relief is
DENIED, and his Motion to Strike Portions of Trial Counsel’s Affidavit is
DISMISSED AS MOOT. I am entering this Opinion as my ORDER.

IT ISSO ORDERED.

Craig pcKarsnitz

cc: Prothonotary

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