State v. Anderson

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
Plaintiff,
V. Cr. ID No. 1508015476 A & B
HAKIEM ANDERSON,
Defendant.

Submitted: October 5, 2020
Decided: October 19, 2020

COMMISSIONER’S REPORT AND RECOMMENDATION
THAT DEFENDANT'S MOTION FOR POSTCONVICTION
RELIEF SHOULD BE DENIED

Brian L. Arban, Esquire, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, Attorney for the State of Delaware.

Michael W. Modica, Esquire, counsel for Defendant

MAYER, Commissioner
This 19" day of October, 2020, upon consideration of Defendant’s Motion for

Postconviction Relief (the “Motion”), I hereby recommend as follows:
BACKGROUND

On the night of August 15, 2015, Defendant got into an argument with Markevis
Clark (“Clark”).! Defendant walked away but later returned, and shot Clark in the head.
Three eyewitnesses saw the shooting — Keisha Waters (“Waters”), Theresa Brooks
(“Brooks”) and Joseph Brown (“Brown”). Brown was Clark’s brother. During trial, the
State presented a prior recorded statement from Arto Harrison (“Harrison”), Clark’s
biological father, implicating Defendant in the shooting. Although subpoenaed to testify
for the State, Harrison failed to appear as scheduled. However, after the State concluded
its case, Harrison unexpectedly appeared and was willing to testify on Defendant’s
behalf. Brown testified during the State’s case in chief. Brown was not cooperative
during trial and often interjected his own personal non-responsive thoughts into the
testimonial process.

The jury found Defendant guilty of each of the charged offenses. On December
8, 2017, Defendant was sentenced as follows: Murder First Degree, Level V for the
balance of his natural life as a mandatory sentence pursuant to 11 Del. C. §636(a)(1);

Possession of a Firearm During the Commission of a Felony (“PFDCF”) five years at

' For a full recitation of the facts, see Defendant’s Motion at pgs. 3-7.

2
Level V as a mandatory sentence pursuant to 11 Del. C. §1447A(A); and Possession of
a Firearm by a Person Prohibited (“PFBPP”) fifteen years at Level V, suspended after
ten years for two years at Level III, the first ten years was a mandatory term of
incarceration pursuant to 11 Del. C. §1148(e)(2)(b).

Defendant appealed and argued, amongst other things, that the Superior Court
abused its discretion by: (i) permitting the jury to hear recorded prison phone calls during
which Defendant may have solicited family members to tamper with witnesses; (ii)
allowing the State to play a recorded statement of Harrison as an unavailable witness;
and (iii) denying his motion for a mistrial after Harrison voluntarily appeared after the
prosecution had rested. On November 20, 2018, the Supreme Court issued a decision
affirming the conviction.?

On February 21, 2019, Defendant filed a pro se Motion for Postconviction Relief
and Motion for Appointment of Counsel, with Memorandum of Law.‘ The Court granted

his request for counsel,> and on November 14, 2019, post-conviction counsel filed

* DI. #53. The PFBPP charge was severed from the original case and Defendant was later convicted
of PFBPP after a separate bench trial.

3 DL. # 66, Supreme Court Case No. 559, 2017; Anderson vy. State, 2018 WL 6068736 (Del. Nov. 20,
2018).

4 D.I. #67. All docket references will be to the lead case # 1508015476A.

> DI #71.
Defendant’s Rule 61 Motion for Postconviction Relief (the “Motion”).° Trial Counsel
submitted an Affidavit’ and the State filed a Response to the Motion.? On June 1, 2020,
Defendant filed a Reply Brief? and included an argument that was not present in the
original Motion. The Court directed Trial Counsel to submit an additional affidavit,!°
the State submitted a supplemental response!! and Defendant filed a supplemental
reply.'* Briefing is now complete.

Defendant claims Trial Counsel erred because he failed to: (1) object to Brown’s
highly prejudicial and non-responsive answers during his direct testimony; (2) object to
a replay of the Harrison video interview; (3) avoid eliciting testimony that Defendant’s
fingerprints were in the Automated Fingerprint Identification System (AFIS); (4)
investigate and obtain favorable recordings of Defendant’s telephone conversations with
Harrison; and (5) request a missing/lost evidence instruction in response to the State’s

failure to preserve all prison phone calls.

6 DL. #s 77, 78.
’ DL. # 86.
8 D.I. #s 87, 88.
° DL #92.
10 DL #93.
'" DL #94.

2 DA. #98.
DISCUSSION

Before considering the merits of the claims, the Court must first determine whether
there are any procedural bars to the motion.'? Defendant’s Motion was timely filed
within one year of the date of the issuance of the Supreme Court mandate.'* Pursuant to
Super. Ct. Crim. R. 61(i)(3) and (4) though, any ground for relief that was not previously
raised is deemed waived, and any claims that were formerly adjudicated, whether in the
proceedings leading to the judgment of conviction, in an appeal, in a postconviction
proceeding, or in a federal habeas corpus proceeding, are thereafter barred. However,
ineffective assistance of counsel claims cannot be raised at any earlier stage in the
proceedings and are properly presented by way of a motion for postconviction relief. '°
The fact that counsel did not raise an argument or objection during the trial, or on appeal,

does not bar a defendant from alleging that counsel’s failure amounted to ineffective

assistance. !®

'? Younger v. State, 580 A.2d 552, 554 (Del. 1990).

'4 Super. Ct. Crim. R. 61(m)(2) and Super. Ct. Crim. R. 61(i)(1).

‘5 Whittle v. State, 2016 WL 2585904, at *3 (Del. Apr. 28, 2016); State v. Evan-Mayes, 2016 WL
4502303, at *2 (Del. Super. Aug. 25, 2016).

'° See Malloy v. State, 2011 WL 1135107, at *2 (Del. Mar. 28, 2011); Brodie v. State, 2011 WL 927673,
at *1 (Del. Super. Mar. 17, 2011); State v. Ross, 2004 WL 2735515, at *2 (Del. Super. Nov. 22, 2004).
In order to prevail on an ineffective assistance of counsel claim, a defendant must
show that his counsel’s representation fell below an objective standard of reasonableness
and the deficiencies in counsel’s representation caused the defendant actual prejudice.!”
When reviewing such a claim, the Court must analyze counsel’s conduct based upon all
of the facts of the case and avoid peering through the lens of hindsight.'® Defendant must
show that any alleged errors were so serious that his counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment.!? “A defense attorney may
not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare
for what appear to be remote possibilities.”*° Great weight and deference are given to
tactical decisions by the trial attorney and counsel cannot be deemed ineffective for
failing to pursue motions that lack merit?! Further, in order to prevail on an ineffective
assistance of counsel claim, a defendant must show that but for the errors, there is a

reasonable probability that the outcome of the proceedings would have been different 22

" Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hitchens v. State, 757 A.2d 1278 (Del,
2000).

18 State v. Wright, 653 A.2d 288, 295 (Del. Super. 1994).
State v. Finn, 2012 WL 1980566, at *4 (Del. Super. May 23, 2012).

0 Id. at *4 (holding defense counsel provided active and capable advocacy when evidence against
Defendant was overwhelming) (citing Harrington v. Richter, 131 S. Ct. 770, 787-792 (2011)).

*! State v. Miller, 2013 WL 871320, at *4 (Del. Super. Feb. 26, 2013).

* Strickland, 466 U.S. at 687-88, 694; Hitchens vy. State, 757 A.2d 1278 (Del. 2000).
In doing so, Defendant must overcome a strong presumption that counsel’s conduct was
reasonably professional under the circumstances.”3
L Trial Counsel’s Response to Brown’s Testimony was Reasonable

Defendant first argues that Trial Counsel was ineffective for failing to object to
Brown’s testimony or to ask for a mistrial/curative instruction. Brown witnessed the
shooting of his brother and while testifying, was emotional. Some of Brown’s testimony
was incendiary, describing Defendant as “rat”, “dog”, “girl/boy”, “whack” or “snake in
grass,” whereas other statements condemned Defendant as “guilty,” “should have taken
a plea,” and that he “murdered” his brother.‘

The trial judge determines the prejudicial effect of an unsolicited response by a
witness.*” When reviewing the issue, the Court will look to “the nature and frequency of
the conduct or comments, the likelihood of resulting prejudice, the closeness of the case
and the sufficiency of the trial judge's efforts to mitigate any prejudice in determining

whether a witness's conduct was so prejudicial as to warrant a mistrial.”2° Defendant

* State v. Wright, 653 A.2d at 293-94 (citations omitted).

** See Appendix to Motion at pgs. A52-74, 81-113, 116-117.

°> Pena v. State, 856 A.2d 548, 550-51 (Del. 2004), citing Taylor v. State, 690 A.2d 933, 935 (Del.
1997).

°° Id., citing Griffith v. State, No. 570,2002, 2003 WL 1987915, at *4 (Del.2003); Taylor, 690 A.2d at
935 (“First, the Court examines the nature, persistency, and frequency of the outburst. Second, the Court
considers whether the outburst created a likelihood that the jury was misled or prejudiced. Third, the
Court examines the closeness of the case. Fourth, the Court considers the trial judge's attempt to mitigate

any prejudice.”).
does not now argue that the Court erred in denying a mistrial, but rather that Trial Counsel
should have challenged the testimony differently.

Defense strategy is not always successful, but that does not mean Trial Counsel
was ineffective. The United States Supreme Court has strongly cautioned that the courts
must avoid the “distorting effects of hindsight” or grading counsel’s performance.*’
Otherwise, a defendant could too easily challenge a particular strategic choice simply
because the effort failed to garner the relief sought.28 Further, there are “countless” ways
by which counsel may defend a client, and no two advocates may necessarily see the case
the same way. As such, defense counsel has “wide latitude in making tactical decisions”
and enjoys a strong presumption that his conduct was the result of sound trial strategy.??
“Effective representation does not require that the Defendant prevail nor that his counsel

doesn’t make mistakes.”°° The Court must review all of the circumstances, and after

*7 Ploof v. State, 75 A.3d 811, 821-825 (Del. 2013), citing Strickland, at 689-690, 687.

*8 State v. Fletcher, 2015 WL 2438271, at *5 (Del. Super. May 19, 2015); State v. Gattis, 2011 WL
1458484, at *9 (Del. Super. Mar. 22, 2011) (the court must avoid judging effectiveness of trial strategy
simply because the theory advanced was unsuccessful). See also, State v. Wright, 1998 WL 734771, at
*8 (Del. Super. Sept. 28, 1998) (finding that although trial counsel’s strategy was risky, it was not

unreasonable nor ineffective).

9 State v. Fletcher, 2015 WL 2438271, at *5, citing Harrington v. Richter, 131 S.Ct. 770, 788-789
(2011); Thomas v. Varner, 428 F.3d 491, 498-500 (3d. 2005) (finding that once it is determined that
trial counsel had an informed strategy, there is a strong presumption of effective assistance that is

virtually unchallengeable).

3° State v. MacDonald, 2007 WL 1378332, at *8 (Del. Super. May 21, 2007).
applying a heavy measure of deference to counsel’s judgments, determine whether the
decisions made were reasonable.?!

Brown’s comments were random and unpredictable. Rather than attempting to
object each and every time he was taken by surprise by something said, Trial Counsel’s
strategy was to make Brown appear irrational. Trial Counsel conducted voir dire of
Brown outside the presence of the jury. Brown was at the shooting and saw what
happened. Trial Counsel’s strategy was to discredit him with the jury. Trial Counsel felt
Brown’s demeanor would limit his credibility with the jury, and Brown was in fact
frequently admonished by the judge. Trial Counsel also highlighted during cross-
examination that Brown did not come forward until a month after the shooting, and only
after he himself was arrested. Trial Counsel emphasized that Brown was high on beer
and drugs and his statements were inconsistent. At the conclusion of the case, the trial
judge gave the jury an instruction regarding credibility of witnesses and reminded the
jurors that they should not be influenced by passion, prejudice or sympathy. For the court

to find that a curative instruction is insufficient, the court must also find that the prejudice

31 Strickland, at 691.
to defendant was “egregious.” ** In light of the deference given to Trial Counsel’s
tactical decisions, and after reviewing Brown’s testimony in its entirety, I find that Trial
Counsel employed an informed strategy and Defendant has failed to rebut the strong
presumption given to counsel, or that he was prejudiced by counsel’s actions.
If. Trial Counsel Effectively Contested the Replay of the Video

During trial, the State introduced recorded prison phone calls wherein Defendant
made statements that were interpreted as encouraging family members to tamper with
witnesses, including Harrison. When Harrison failed to appear at trial, the Court declared
him unavailable and the State played a recorded statement during which he told police
about a phone conversation he had with Defendant the Sunday morning after the
shooting. During the call, Defendant stated, “Pop, I’m sorry, I didn’t mean to do it.”
After the State rested its case, Harrison appeared and offered to testify for the defense.
Harrison denied any efforts to prevent him from testifying and when called to testify, he
recanted his prior recorded statement. On appeal, the Supreme Court held that the trial

court properly admitted the phone calls and the recorded statement? In an effort to

* Ashley v. State, 798 A.2d 1019 (Del. 2002), citing Bowe v. State, 514 A.2d 408, 410 (Del.1 986); Ney
v. State, 713 A.2d 932 (Del.1998) (stating that in certain cases “a cautionary instruction is a ‘meaningful
and practical’ alternative obviating the need for a mistrial”); Weddington v. State, 545 A.2d 607, 611-
15 (Del.1988) (holding that an instruction did not cure the prejudice of an unsupported interjection of

race into the case).

33 Anderson, at *1.

10
evade the bar to formerly adjudicated claims, Defendant instead argues that Trial Counsel
was ineffective for failing to object to a replay of the video after a technical glitch.4
There is no dispute that Trial Counsel objected to the State’s ability to play the
videotaped interview and later moved for a mistrial. The State then argued that the video
“skipped” at a crucial point and that this may mislead the jury. The State asked to play
the tape again. Although Defendant argues that Trial Counsel did not object to the replay,
that is not entirely correct. In response to the State’s request, Trial Counsel suggested
that the State could instead address it during argument to the jury. Despite this, the Court
found that there was a “defect in the video” and permitted the replay. Trial Counsel’s
challenge to the replay of the video was objectively reasonable, and Defendant has failed
to demonstrate prejudice resulting from counsel’s actions.35
If. The Reference to AFIS was Not Objectively Unreasonable
On direct examination, Detective Leccia testified that the fingerprint evidence
obtained at the scene did not match Defendant. On cross-examination, Trial Counsel
explored this further:
Detective Leccia: Each fingerprint we would have go into our
AFIS, the automated fingerprint identification system. And
that’s just a database of multiple fingerprints from various

sources. And the defendant was also in that database and we
did not get a match to the defendant from any of those.

4 To the extent Defendant is arguing that the trial court should not have allowed a replay of the video,
this argued is deemed waived for Defendant’s failure to present it on appeal.

°° Of note, the Supreme Court found that Harrison’s testimony negated any prejudice to Anderson by
the State playing the recorded statement. Anderson, at *1.

11
Defense Counsel: Does that database have the entire universe
or just individuals that maybe have been convicted of a crime
where there fingerprints were?

Detective Leccia: It’s not just subjects that are convicted of
crimes, there’s other people. It’s not everybody, obviously, but
its not just criminals.

Defendant argues that the testimony elicited by Trial Counsel created an inference
that he had a prior criminal history and was improper character evidence** that was
extremely prejudicial. I disagree. The questioning highlighted that the database has the
“entire universe” of individuals, and stressed that it was not just those convicted of a
crime. Trial Counsel attests that the questioning was “clearly strategic.” The jury
understood that Defendant was incarcerated and his fingerprints would likely be in the
database. Prints were recovered from the area of the shooting and Trial Counsel felt that
the importance of the jury knowing that Defendant’s fingerprints were not at the scene
far outweighed any potential inference the jury may have drawn. Trial Counsel did not
introduce, nor elicit, testimony indicating Defendant had been previously convicted of a
crime or the details of any convictions. In consideration of the great deference and weight

given to Trial Counsel’s trial strategy, the cross-examination was not objectively

unreasonable.

°° See Delaware Rule of Evidence 404(b).
12
IV. Defendant was not entitled to a missing evidence instruction

Finally, Defendant claims that during trial he informed Trial Counsel of a three-
way telephone call with Harrison wherein Harrison confirmed that he knew Defendant
did not shoot the victim. Defendant urged Trial Counsel to obtain the recording to refute
the State’s taped statement during which Harrison stated Defendant admitted to shooting
the victim. Defendant argues that (1) Trial Counsel erred by failing to request and present
the recordings; and (2) Trial Counsel should have requested a missing evidence
instruction.>”

The Motion does not identify the “third” person on the call, the date or time of the
call, or any other information to confirm the existence of this purported conversation.°®
There is no indicia of reliability regarding the existence of this call. Regardless, contrary
to Defendant’s initial assertion, Trial Counsel requested records of any phone
conversations, but he did not receive a record of this call.2° Assuming the call existed,
the question is whether Trial Counsel erred by failing to request a missing evidence

instruction. Trial Counsel agrees that if Harrison had not testified, then he would have

37 See Lolly v. State, 611 A.2d 956 (Del. 1992); Deberry v. State, 457 A.2d 744 (Del. 1983).

38 Other than a vague and self-serving affidavit from Defendant, he did not provide any further
confirmation to support his position.

3° The State produced records of calls from September 23, 2015 — December 2, 2015 and from July 6,
2016 — August 18, 2016, but other records were not preserved.

13
requested the instruction.‘ However, Trial Counsel also acknowledges that other
available phone recordings were presented to the jury to show that Defendant maintained
his innocence, and Harrison testified in person and recanted his previous statement.*! In
fact, Harrison testified that Defendant never told him he killed Clark, he was under the
influence when he gave his statement to the police, and he attempted to discredit his prior
statements as well as Brown’s trial testimony. Therefore, if the phone call recording
existed, it would not have provided any additional information.

In addition, the State argued that (1) the telephone service vendor for the facility
only maintains recordings for one year; (2) the State does not have an obligation to
preserve all recordings; and (3) there was no prejudice to Defendant because Harrison
testified and recanted his original statement. When analyzing a claim that the State failed

to gather and/or preserve potentially exculpatory evidence, the Court considers:

(i) whether the requested material, if in the possession of the
State at the time of the request, would have been subject to
disclosure under Superior Court Criminal Rule 16 or under
Brady v. Maryland; (ii) if so, whether the State had a duty to
preserve the material; and (iii) if there was a duty to preserve,
whether the State breached that duty and what consequences
should flow from that breach. Those consequences are
determined in accordance with a three-part test, which
considers: “[ (i) ] the degree of negligence or bad faith
involved; [ (ii) ] the importance of the missing evidence
considering the probative value and reliability of secondary or

40 Aff. at pg. 3.

“| Aff. at pgs. 2-3.
14
substitute evidence that remains available; and [ (iii) ] the
sufficiency of the other evidence produced at the trial to sustain
the conviction.”

A defendant is not entitled to a missing evidence instruction unless he can show that the
State acted negligently or in bad faith in failing to preserve the evidence, and the missing

evidence substantially prejudiced his case.”

In the present case, the recording was not in the State’s possession at the time of
the request, but if it existed, it would have been discoverable under Rule 16 or as Brady
material. In Defendant’s supplemental reply, he relies heavily on Rule 16, which states:

Upon request of a defendant the state shall disclose to the
defendant and make available for inspection, copying, or
photographing: any relevant written or recorded statements
made by the defendant..., or copies thereof, within the
possession, custody, or control of the state, the existence of
which is known, or by exercise of due diligence may be come
known, to the attorney general...

Defendant encourages the Court to interpret this rule as requiring the State to preserve

all phone calls of an incarcerated defendant, regardless of timing or relevance. Rule 16

*? McCrey v. State, 2008 WL 187947, at *2 (Del. Jan. 3, 2008), citing Brady v. Maryland, 373 U.S. 83
(1963); Wainer v. State, 2005 WL 535010, at *2 (Del. 2005); Hammond v. State, 569 A.2d 81, 85-87
(Del. 1989); Lunnon vy. State, 710 A.2d 197, 199-200 (Del. 1998); Deberry, 457 A.2d at 750. See also
Bailey v. State, 521 A.2d 1069, 1090 (Del. 1987) (applying same test to State’s duty to gather evidence).

2 McCrey v. State, 2008 WL 187947, at *2 (Del. Jan. 3, 2008), citing Wainer, 2005 WL 535010, at *3;
Lunnon, 710 A.2d at 200-01.

15
though requires (a) a defendant to make a request; and (b) the State to turnover any
recorded statements in its possession.

Trial Counsel was appointed to represent Defendant on December 12, 2016. On
May 26, 2017, the State provided Trial Counsel with a call history for the period of
September 23, 2015 to December 2, 2015. Soon thereafter, Trial Counsel requested
recordings of the calls. The State responded that any recordings from prior to July 5,
2016, no longer existed because they are only maintained for one year. Defendant did
not tell Trial Counsel about the Harrison call, until after trial began in July of 2017. After
considering the timing of events, Defendant’s argument is that although he did not tell
Trial Counsel about the call until almost two years after it occurred, and by the time Trial
Counsel was appointed, the tape was no longer preserved, the State should have known
to preserve ai/ calls. Defendant then argues that the State’s negligent acts should have
prompted Trial Counsel to request a missing evidence instruction.

Defendant has not cited any legal authority compelling the State to gather and
preserve all prison phone calls, regardless of standard policy.“4 To place this burden on
the State presumes that every phone call is material to the preparation of the defense.
Prior to trial, neither the State, nor Trial Counsel, had reason to believe there were

telephone recordings that could exculpate Defendant to trigger a duty to gather and

““ The Supreme Court has declined to establish specific procedures for the State to fulfil its duty to
gather and preserve evidence. See Hammond v. State, 569 A.2d 81, 89 (Del. 1989).

16
preserve.” Similar to the circumstances in Turner v. State,’ the recording was not made
for the purpose of gathering evidence, there are no allegations of bad faith by the State,
Defendant did not timely demand that the calls be preserved, and the facility followed its
standard policy of preservation of recordings.4” As such, I do not find that the State’s
actions were wrongful.

Moreover, the missing evidence, if it existed, would have been duplicative of
evidence presented at trial. To show prejudice, Defendant but demonstrate that he would
have prevailed on the merits of the claimed error and if granted, that the missing evidence
instruction would have affected the outcome of the proceedings.** Defendant presumes
that if Trial Counsel had requested a missing evidence instruction, his request would have

been granted. In light of the availability of secondary/substitute evidence (Harrison’s

4S MeCrey v. State, 2008 WL 187947, at *2 (Del. Jan. 3, 2008) (“The State had no duty to preserve
potentially exculpatory material where the State, in good faith, did not know that such evidence
existed”). See also Schaffer v. State, 2018 WL 1747793, at *4 (Del. Apr. 10, 2018) (limiting duty to
gather to avoid requirement for State to “seek it out.”); Mason v. State, 2009 WL 189839, at *1 (Del.
Jan. 5, 2009) (“the duty to preserve exculpatory evidence does not include a duty to seek out exculpatory
evidence”); DeLoach v. State, 2012 WL 294818 8, at *4 (Del. Super. July 16, 2012) (finding State had
no duty to video record all driving under influence investigations); Turner v. State, 2006 WL 453247
(Del. Feb, 24, 2006) (holding defendant was not entitled to Deberry instruction when video was

destroyed pursuant to administrative policy).
“6 2006 WL 453247 (Del. Feb. 24, 2006).
*” See also California v. Trombetta, 467 U.S. 479, 488-89 (1984) (applying three part test and limiting

duty to preserve if the evidence is expected to play significant role in defense, the exculpatory value
was apparent before it was destroyed, and defendant was unable to reasonably obtain comparable

evidence).

48 Thomas y. Varner, 428 F.3d at 502.

17
live testimony) though, Defendant has failed to show that if Trial Counsel had requested
the instruction, there is a substantial likelihood that the Court would have granted such a
request. Defendant cannot support a claim that Trial Counsel was objectively

unreasonable for failing to request the instruction or that if he had, that it would have
affected the outcome of the proceedings.*”
For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief

should be DENIED.

IT IS SO RECOMMENDED. # .

be

Commissioner Katharine L. Mayer

cc: Prothonotary
Brian L. Arban, Esquire
Michael W. Modica, Esquire
Anthony A. Figliola, Jr., Esquire

See State v. Perkins, 2008 WL 2406231, at *3 (Del. Super. June 11, 2008).
18