State v. Jones

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
)
v. ) I.D. Nos. 1706012725, 1708022021
)
GARY JONES, )
)
Defendant. )

Date Submitted: April 19, 2022
Date Decided: July 20, 2022

Upon Consideration of Defendant’s Motion for Post-Conviction Relief - DENIED.

MEMORANDUM OPINION

Renee L. Hrivnak, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware. Attorney for the State of Delaware.

Patrick J. Collins, Esquire, and Kimberly A. Price, Esquire, Collins & Price,
Wilmington, Delaware. Attorneys for Defendant Gary Jones.

JURDEN, P.J.
 Defendant Gary Jones was convicted on various charges after he assaulted his

ex-girlfriend and then threatened to murder her with a screwdriver. Jones now

moves for post-conviction relief. He does not maintain his innocence. Instead, he

alleges that his lawyer (“Trial Counsel”) ineffectively failed to file acquittal and

severance motions. The Court finds that Trial Counsel performed reasonably and

did not prejudice the defense. Accordingly, Jones’s Rule 61 motion is denied.

I. BACKGROUND1

A. The Attack

Jones and Natosha Frisby had a rocky relationship. They broke up several

times and would reunite only for the sake of their child.2 While dating Frisby, Jones

was possessive and paranoid about Frisby’s fidelity. For example, earlier in the

same day that gave rise to this case, Jones followed Frisby into a public bathroom to

confirm that she was not inside a stall with someone else.3 Moments before though,

Jones had been guarding the bathroom entrance,4 making a rendezvous between

Frisby and another person impossible.

1
The Court has drawn the facts from the appendix attached to Jones’s motion, the exhibits
contained in the larger criminal file, and the Delaware Supreme Court’s findings on direct appeal.
Where appropriate, the Court will cite to specific items in the record. Items in the appendix are
denominated using “A[#].”
2
A57 at 75:12 (Direct Exam. of Natosha Frisby).
3
A58 at 77:7–18 (Direct Exam. of Natosha Frisby).
4
Id. at 77:21 (Direct Exam. of Natosha Frisby).

2
 Jones’s psychological abuse culminated in physical violence. After the

bathroom episode, Jones and Frisby returned to Frisby’s house. Frisby and the

couple’s child fell asleep on separate couches. Frisby recalled that the lights were

on before she shut her eyes. When she awoke, however, the room was completely

dark; all the lights were purposefully unplugged.5

Jones was standing over Frisby as she regained consciousness. Then he

started punching her in the face. He struck her eyes, ears, and mouth as she bled,

cried, and begged. He muffled her screams with his palm. He used his weight to

hold her down. And he almost broke her fingers as she tried to pry his hands off

her.6 All this happened while the couple’s child was a few feet away.

Jones’s brutality left Frisby’s head so sore that she could barely speak.7 But

Jones was not done yet.

Jones ordered Frisby to the kitchen, where he started wielding a screwdriver.

He ignored her as she told him to stop.8 Forcing the screwdriver against her chest,

Jones demanded that Frisby tell him whether she had been cheating on him. 9 He

5
A59 at 82:17–22 (Direct Exam. of Natosha Frisby).
6
Id. at 83:15–18 (Direct Exam. of Natosha Frisby); A66 at 109:4–10 (Cross Exam. of Natosha
Frisby).
7
A68 at 117:9 (Direct Exam. of Francis Frisby).
8
A59 at 84:18–23 (Direct Exam. of Natosha Frisby).
9
A59 at 84:16 (Direct Exam. of Natosha Frisby); A66 at 110:11–12 (Cross Exam. of Natosha
Frisby).

3
warned that he would kill her if she did not give him the answer he wanted.10 In that

moment, Frisby believed him; she feared that he would murder her.11

Jones brought Frisby to a mirror. Remarking on her injuries, Jones explained

that she “made [him] do that to [her].”12 Frisby recalled being scared and nervous

at this time.13 Hyperventilating, Frisby asked Jones to take her to the hospital.14

Jones refused. He did not want their “dialogue” to be interrupted.15

Jones fled before the police arrived. He was arrested a few weeks later.

B. The Letter

A New Castle County grand jury indicted Jones on six charges: (1)

Aggravated Menacing; (2) Possession of a Deadly Weapon During the Commission

of a Felony (“PDWDCF”); (3) Terroristic Threatening; (4) Unlawful Imprisonment

Second Degree; (5) Assault Third Degree; and (6) Endangering the Welfare of a

Child. A commissioner set bail, which Jones did not post, and a bond was issued.

A no contact order followed from the bond and served as a condition of

Jones’s pre-trial detention. Among other things, the order banned Jones from

sending letters to Frisby.16

10
Id. at 84:14–16 (Direct Exam. of Natosha Frisby).
11
A59 at 113:5 (Redirect Exam. of Natosha Frisby).
12
A60 at 85:4–5 (Direct Exam. of Natosha Frisby).
13
Id. at 85:7–21 (Direct Exam. of Natosha Frisby).
14
Id. at 85:19 (Direct Exam. of Natosha Frisby).
15
Id. at 85:9–10, 14–20 (Direct Exam. of Natosha Frisby).
16
A38 (No Contact Or. & Pre-Trial Conditions).

4
 Jones sent a letter to Frisby anyway (the “Letter”).17 The Letter bore the

address of the prison where Jones was held. Through the Letter, Jones tried to

manipulate Frisby into being uncooperative. He accused her of abandoning him,

referenced suicidal ideation, and repeatedly asked for another chance.18 He also

stressed that he would receive significant prison time if he were convicted.

Frisby disclosed the Letter to the police. Based on the Letter, the State secured

an amended indictment against Jones that added two counts of Non-Compliance

with Bond Conditions (“Non-Comp Bond”). Those charges were joined with the

others. Jones, accompanied by Trial Counsel, rejected a favorable plea offer19 and

proceeded to a jury trial.

C. The Trial

The State offered at trial that Jones’s child was within sight and earshot while

Jones restrained and assaulted Frisby and threatened to murder her. This evidence

was relevant to all the misdemeanors,20 but did not without more prove the felonies:

17
A35–37 (Letter from Gary Jones, to [couple’s child] (Aug. 14, 2017)). Jones tried to sidestep
the no-contact order by addressing the Letter to the couple’s child. A35. The no contact order,
however, applied to both Frisby and the couple’s child. A38. Hence, the two counts of Non-
Compliance with Bond Conditions with which Jones ultimately was charged.
18
A37.
19
See A30–32 (Final Case Rev. Tr.) (Jones rejects a global two-year plea offer despite his 34-year
exposure).
20
See generally 11 Del. C. § 611(1) (1995) (Assault Third) (physical injury); id. § 621(a)(1) (2015)
(Terroristic Threatening) (threat to commit a lethal act); id. § 781 (1995) (Unlawful Imprisonment
Second) (illegal restraint); id. § 1102(a)(4) (2019) (Endangering) (child present for any of the
above offenses). Jones did not appeal the evidence supporting these charges and he does not now
claim that Trial Counsel was ineffective in defending against them.

5
Aggravated Menacing, PDWDCF, and Non-Comp Bond. Accordingly, Trial

Counsel focused Jones’s defense on these three offenses.

1. The Deadly Weapon Defense

Aggravated Menacing and PDWDCF involve a “deadly weapon.”21 As will

be important later, a “deadly weapon” includes “any dangerous instrument . . . which

is used, or attempted to be used, to cause death or serious physical injury.”22 A

“dangerous instrument,” in contrast, is “any instrument . . . which, under the

circumstances in which it is used, attempted to be used or threatened to be used, is

capable of causing death or serious physical injury[.]”23

Trial Counsel observed that the deadly weapon definition omits a “threatened

use” element.24 This may have been a legislative oversight; the statutes have been

amended many times.25 But it did give the defense an opening.

Seizing on the omission, Trial Counsel contended that Jones’s threatened use

made the screwdriver a “dangerous instrument,” but not a “deadly weapon.”26 To

be a deadly weapon, Trial Counsel urged, Jones actually had to “use or attempt to

21
See generally id. § 602(b) (1995) (Aggravated Menacing) (A person is guilty of Aggravated
Menacing if the person “display[s] what appears to be a deadly weapon” so as to “intentionally
place[] another person in fear of imminent physical injury.”); id. § 1447(a) (2019) (PDWDCF) (A
person is guilty of PDWDCF if the person “is in possession of a deadly weapon during the
commission of a felony.”).
22
Id. § 222(6) (2021) (emphasis added).
23
Id. § 222(5) (emphasis added).
24
See, e.g., A83 at 44:19 (Prayer Conf.).
25
See generally Johnson v. State, 711 A.2d 18, 25–27 (Del. 1991).
26
A83 at 44:20–21, A84 at 45:1–7, 13–18 (Prayer Conf.).

6
use” the screwdriver.27 Trial Counsel could not find, and the State was not aware

of, any caselaw that supported his interpretation.28 The Court thus treated the

defense’s construction as novel and the State did not object to the jury hearing it.

Trial Counsel developed evidence for his theory through cross-examination.

He elicited from Frisby that Jones “did not try to stab” her with the screwdriver.29

And he elicited from a police witness that Frisby never accused Jones of stabbing

her either.30

Trial Counsel did not use this testimony to move for acquittal. But he did use

it to emphasize in summation that the screwdriver never became a deadly weapon.

Consistent with Jones’s view of the evidence and the law, Trial Counsel told the jury

that Jones did not actually use or attempt to use the screwdriver to harm Frisby:

The only way that [the] screwdriver is a deadly weapon is if it is actually used
to cause physical injury, or if there is an actual attempt to cause serious
physical injury . . . . Is taking a screwdriver and pointing it at someone . . .
the same as using that screwdriver to cause a serious injury? Of course not.
Is it threatening? Absolutely. But is it an actual attempt to cause a serious
injury? It is [the] defense’s position that it is not.31

27
See, e.g., A84 at 45:13–18 (Prayer Conf.).
28
Id. at 45:19–23, 46:1 (Prayer Conf.).
29
A66 at 110:17–19 (Cross Exam. of Natosha Frisby).
30
A70 at 128:5–11 (Cross Exam. of Joshua Willis).
31
A89 at 67:16–19, A90 at 72:22–23, A91 at 73:1–5 (Def.’s Closing Arg.).

7
 Trial Counsel proposed to amend the deadly weapon instructions to reflect the

defense’s reading of the statutes. The State did not object. Accordingly, the Court

accepted the defense’s amended instructions and read them to the jury.32

2. The Non-Comp Bond Defense

Trial Counsel did not move to sever the Non-Comp Bond charges. The State

thus introduced the Letter alongside everything else. As noted earlier, the Letter

indicated that Jones was in jail. And Jones used the Letter to calculate his sentencing

exposure. So the Court asked whether the defense would seek a curative instruction.

The defense said no.33 Trial Counsel explained that “strategically the best

move” for the defense was to minimize the jury’s attention on the gravity of Jones’s

charges and their associated penalties.34 Accordingly, Trial Counsel narrowed his

presentation to whether Jones was held in lieu of bail.35 Neither party argued that

the Letter’s contents were essential to proving Non-Comp Bond.

D. The Appeal

The jury found Jones guilty on all charges. The Court sentenced him to 33

years at Level V, suspended after 15 years for decreasing levels of supervision.36

32
See, e.g., A95 at 92:9–16 (PDWDCF Instr.).
33
A65 at 105:5–6 (Sidebar).
34
A100 at 112:14–23, 113:1–4 (Post-Trial Conf.).
35
See, e.g., A91 at 73:6–23, 74:1–20 (Def.’s Closing Arg.); see generally 11 Del. C. § 2109(c),
(c)(1) (2018) (Non-Comp Bond).
36
A139–43 (Sentencing Order). The Court noted several aggravating factors, including Jones’s
extensive criminal history, his status as a Pennsylvania sex offender, and his undue depreciation
of his offenses. A143 (Sentencing Order).

8
 Jones appealed. Trial Counsel did not represent Jones on appeal. Through

different counsel,37 Jones filed an opening brief that tracked Trial Counsel’s

arguments. Jones argued that the State failed to adduce sufficient evidence to prove

that he displayed or possessed a deadly weapon and that he was held in lieu of bail.38

The Supreme Court affirmed. In doing so, the Supreme Court observed that

Trial Counsel did not move for acquittal as to any charge.39 Thus, the Supreme Court

applied plain error review to Jones’s claims.40 Using that standard, the Supreme

Court found “sufficient” evidence that (1) the screwdriver “appeared” to Frisby as a

deadly weapon;41 (2) under the circumstances, placing the screwdriver against

Frisby’s chest was an “attempt[] to cause serious physical injury”;42 and (3) Jones

was held on felony charges and knowingly violated the no contact order.43 The

Supreme Court could not have made these rulings consistent with plain error review

unless there was no “basic, serious and fundamental error” that was “apparent on the

face of the record” and “clearly prejudiced” Jones’s trial.44

37
Jones was represented by conflict counsel because his appointed appellate counsel
unsuccessfully filed a no-merit brief and then moved to withdraw. See Rule 26(c) Br., Jones v.
State, 2020 WL 91815 (Del. Jan. 7, 2020) (No. 429,2018), D.I. 14; Order Granting Mot. to
Withdraw & Den. Mot. to Affirm ¶ 3, in id., D.I. 16.
38
Appellant’s Opening Br. at 9–27, in id., D.I. 19.
39
Jones, 2020 WL 91815, at *2.
40
Id.
41
Id. at *3 (internal quotation marks omitted).
42
Id. at *4.
43
Id.
44
Id. at *2 (internal quotation marks omitted).

9
 The Supreme Court issued its mandate on February 7, 2020.45 This Rule 61

motion followed.46

E. This Motion

On April 7, 2020, Jones moved pro se under Rule 61 for post-conviction relief.

The Court appointed post-conviction counsel to represent him. Post-conviction

counsel eventually filed a revised Rule 61 motion, which the State has opposed.

Jones has never maintained his innocence. He instead alleges two ineffective

assistance claims. Trial Counsel has responded with a two-paragraph affidavit.47

1. The Acquittal Claim

Jones first alleges that Trial Counsel was ineffective because he did not move

for acquittal against the Aggravated Menacing and PDWDCF charges (the

“Acquittal Claim”). According to Jones, the Court would have granted an acquittal

motion because there was no evidence that he “attempted to stab” Frisby.48 Trial

Counsel’s error was prejudicial, in Jones’s view, because it led to his convictions

and confined his appellate arguments to plain error review.49

45
Supr. Ct. Mandate, Jones v. State, 2020 WL 91815 (Del. Jan. 7, 2020) (No. 429,2018), D.I. 25.
46
Jones also moved pro se under Rule 35 for a sentence modification. The Court denied that
motion, D.I. 38 (I.D. No. 1706012725), and the Supreme Court affirmed, Jones v. State, 2020 WL
4187303 (Del. July 20, 2020). Jones’s sentencing challenges are not at issue here.
47
See generally D.I. 54 (I.D. No. 1706012725) [hereinafter “Margules Aff.”].
48
E.g., Def.’s Am. R. 61 Mot. at 18.
49
Id. at 19–20.

10
 Trial Counsel acknowledges that he did not move for acquittal.50 He says that

he cannot “recall” the reason behind this choice.51

2. The Severance Claim

Jones also alleges that Trial Counsel was ineffective because he did not move

to sever the Non-Comp Bond charges (the “Severance Claim”). Because those

charges were not severed, Jones insists, the jury considered the Letter’s contents and

his incarcerated status in finding him guilty. Jones does not articulate precisely what

prejudice this alleged error caused him, but he seems to suggest that the jury found

him guilty because of a generalized bias against people who cannot post bail.52

Trial Counsel agrees that he did not move to sever.53 Again, he says that he

cannot recall why.54

II. STANDARD OF REVIEW

A defendant may move under Criminal Rule 61 for post-conviction relief.55

Rule 61 “balance[s]” the law’s interest in conviction finality “against . . . the

important role of the courts in preventing injustice.”56 Although the availability of

50
Margules Aff. ¶ 1.
51
Id.
52
Def.’s Am. R. 61 Mot. at 25.
53
Margules Aff. ¶ 2.
54
Id. The Court appreciates Trial Counsel’s affidavit, but ultimately finds that the trial and
appellate records and the parties’ briefing provide independent and adequate information for
assessing Jones’s motion. See Pierce v. State, 2009 WL 189150, at *3 (Del. Jan. 16, 2009).
55
Del. Super. Ct. Crim. R. 61.
56
Zebroski v. State, 12 A.3d 1115, 1120 (Del. 2010).

11
collateral review reintroduces uncertainty into completed criminal proceedings, the

(“extremely rare”) possibility of undetected innocence or a comparable miscarriage

of justice overrides its disruptive effects.57

In the generic case, however, there must be a “definitive end to the litigable

aspect of the criminal process.”58 Collateral review “ensure[s] that individuals are

not imprisoned” wrongly; it is not designed to correct minor “errors of fact.”59

“Calibrated to screen for the wrongfully convicted, Rule 61 should not be used to

launch post hoc strikes on issues inessential to a judgment of guilt.”60

Rule 61 does not “allow defendants unlimited opportunities to relitigate their

convictions.”61 To deter abusive collateral litigation, the standards and presumptions

“adopted” under post-conviction rules purposefully have made “winning [collateral]

relief difficult[.]”62 For example, a defendant seeking to invalidate a conviction must

contend with a “presumption of regularity.”63 “The presumption of regularity

attaches to all final judgments . . . and implies those judgments have been done

rightly until contrary evidence appears.”64 Accordingly, Rule 61 shifts to the

57
Schlup v. Delo, 513 U.S. 298, 321 (1995). Accord Purnell v. State, 254 A.3d 1053, 1122–23
(Del. 2021).
58
Flamer v. State, 585 A.2d 736, 745 (Del. 1990).
59
Herrera v. Collins, 506 U.S. 390, 400 (1993).
60
State v. Owens, 2021 WL 6058520, at *10 (Del. Super. Ct. Dec. 21, 2021).
61
Ploof v. State, 75 A.3d 811, 820 (Del. 2013).
62
Brown v. Davenport, 142 S. Ct. 1510, 1526 (2022).
63
E.g., Parke v. Raley, 506 U.S. 20, 29 (1992); accord Xenidis v. State, 2020 WL 1274624, at *2
(Del. Mar. 17, 2020).
64
Xenidis, 2020 WL 1274624, at *2.

12
defendant the burden of demonstrating that his conviction is not supported by a

“sufficient factual and legal basis” that otherwise will be presumed.65

III. ANALYSIS

A Rule 61 analysis proceeds in two steps. First, the Court must determine

whether the motion is procedurally barred.66 If it is not barred, the Court next

reviews the motion’s merits on a claim-by-claim basis.67 As explained below,

Jones’s motion is not barred, but it fails to state a claim for post-conviction relief.

A. Jones’s motion is not procedurally barred.

Rule 61 was adopted to create a mechanism for presenting collateral claims

for post-conviction relief.68 As a result, there are several procedural limitations on

the availability of post-conviction relief.69 Rule 61 contains four procedural bars

that, if applicable, preclude review of all or part of the defendant’s motion. 70 Rule

61 bars claims that are untimely,71 successive,72 defaulted,73 or formerly

adjudicated.74

65
Del. Super. Ct. Crim. R. 61(a)(1). See, e.g., Dorsey v. State, 2007 WL 4965637, at *1–2 (Del.
Nov. 6, 2007).
66
E.g., Younger v. State, 580 A.2d 552, 554 (Del. 1990).
67
E.g., State v. Reyes, 155 A.3d 331, 342 n.15 (Del. 2017).
68
See Bailey v. State, 588 A.2d 1121, 1125 (Del. 1991).
69
Ploof, 75 A.3d at 820.
70
See generally Del. Super. Ct. Crim. R. 61(i)(1)–(4).
71
Id. R. 61(i)(1).
72
Id. R. 61(i)(2).
73
Id. R. 61(i)(3).
74
Id. R. 61(i)(4).

13
 Jones’s Claims are timely because they were brought within one year of the

Supreme Court’s mandate.75 They are not successive because this is Jones’s first

motion. And they are not defaulted because they allege ineffective assistance of

counsel, which “generally cannot be raised at trial or on direct appeal.”76

That leaves former adjudication. Relevant here, Rule 61(i)(4) bars on

collateral review claims that were resolved on direct appeal. The State accepts that

the Severance Claim is not barred under Rule 61(i)(4). Instead, the State contends

that Rule 61(i)(4) bars the Acquittal Claim because the Supreme Court found

sufficient evidence to support Jones’s Aggravated Menacing and PDWDCF

convictions. But the Supreme Court reviewed that evidence and Jones’s challenges

to it for plain error. So Green v. State77 forecloses the State’s position.

This Court recently discussed Green’s effect on Rule 61(i)(4).78 In Green, the

Court found formerly adjudicated ineffective assistance claims that were “similar”

to the defendant’s past appellate claims.79 The Court therefore concluded that the

defendant’s ineffective assistance claims were barred under Rule 61(i)(4).

The Supreme Court disagreed. The Supreme Court first observed that a rigid

application of Rule 61(i)(4) to ineffective assistance claims may circumvent the

75
Id. R. 61(i)(1), (m)(2).
76
Malloy v. State, 2011 WL 1135107, at *2 (Del. Mar. 28, 2011).
77
238 A.3d 160 (Del. 2020).
78
See State v. Thompson, 2022 WL 1744242, at *8 (Del. Super. Ct. May 31, 2022).
79
Green, 238 A.3d at 176.

14
default rule reserving those claims for post-conviction proceedings.80 The Supreme

Court thus cautioned: “the mere fact that a post-conviction claim might bear some

resemblance to a formerly adjudicated claim does not trigger Rule 61(i)(4)’s bar.”81

Put differently, the Supreme Court in Green ruled that a prior adjudication of the

error underlying an ineffective assistance claim does not necessarily render the

ineffective assistance claim formerly adjudicated too.

The Supreme Court formed that conclusion by combining two others. The

Supreme Court first distilled the merits of an ineffective assistance claim from the

merits of the underlying error on which it is based.82 Then the Supreme Court

construed Rule 61(i)(4) to capture only prior, “substantive” adjudications of the

underlying errors.83 Taken together, the Supreme Court held that an ineffective

assistance allegation that “follow[s] on” from a previously adjudicated claim is not

procedurally barred if the previous claim was adjudicated on plain error review,

rather than on its “substantive merits:”84

[O]n direct appeal we examined the effect that the admission of questionable
evidence had on the outcome of Green's trial—an inquiry that is also relevant
to Green's ineffective-assistance claims . . . . [But] in Green’s direct appeal,
we did not address the underlying merits of Green's substantive claims but,
instead, concluded that even if the substantive claims had merit, there was no
plain error. That conclusion relied on the isolated nature of the claimed errors

80
See id. at 175–76.
81
Id. at 176.
82
See id.
83
Id.; accord State v. Dunnell, 2021 WL 1716647, at *8–9 (Del. Super. Ct. Apr. 30, 2021).
84
Green, 238 A.3d at 176.

15
 . . . . In this postconviction relief proceeding, however, Green has identified
numerous alleged performance deficiencies that bear no direct relationship to
his direct-appeal claims. In effect, he is now saying that the errors that we said
were not plain in our direct-appeal opinion were not isolated at all. Under
these circumstances, it cannot be seriously contended that his ineffective-
assistance claims, which . . . could not have been brought in the proceedings
leading to the judgment of conviction[,] . . . were nevertheless adjudicated in
those proceedings.85

The Supreme Court thus preserved the principle that Rule 61(i)(4) “precludes” a

defendant “from relitigating” a previously adjudicated issue “under the guise of

ineffective assistance of counsel.”86 The Supreme Court merely clarified that an

ineffective assistance claim cannot be “relitigated” if it was not litigated

(substantively) in the first place.

Even so, Green recognized that prior appellate review of the error underlying

an ineffective assistance claim may render the ineffective assistance claim “futile.”87

Prior review of a claim—even for plain error—may “implicitly reject[]” the merits

of a “follow-on” ineffective assistance allegation that is based on the same claim or

a variant of it.88 So prior review, depending on its scope, may save a follow-on

85
Id. See also id. at 187–88 (Vaughn, J., concurring) (explaining distinction using Rule 61(i)(3)’s
exception for cause and prejudice).
86
Shelton v. State, 744 A.2d 465, 485 (Del. 2000). See Harrington v. Richter, 562 U.S. 86, 105
(2011) (“An ineffective-assistance claim can function as a way to escape rules of waiver and
forfeiture and raise issues not presented at trial . . . .”).
87
Green, 238 A.3d at 176. Accord Thompson, 2022 WL 1744242, at *8 & n.83; Dunnell, 2021
WL 1716647, at *8–9.
88
Green, 238 A.3d at 177–78.

16
ineffective assistance claim from Rule 61(i)(4). But even if procedurally proper, the

follow-on claim still may “fare no better” than its “direct-appeal precursor.”89

Here, the Supreme Court reviewed for plain error the alleged errors underlying

the Acquittal Claim—i.e., guilty verdicts on insufficient evidence. So the Acquittal

Claim’s ineffective assistance component is not formerly adjudicated. But that does

not mean the Acquittal Claim will be successful; after all, Jones largely engages the

same analysis the Supreme Court already rejected. It simply means that the

Acquittal Claim must be reviewed on the merits. Accordingly, the Acquittal Claim

is not procedurally barred.

B. Trial Counsel was not ineffective.

Turning to the merits, Jones’s Claims allege ineffective assistance. Convicted

defendants, like Jones, “bear[] the risk . . . for all attorney errors made in the course

of the representation . . . unless counsel provides constitutionally ineffective

assistance[.]”90 In considering ineffective assistance claims, Delaware law “has

hewed closely to the principles . . . laid down in” Strickland v. Washington.91

“Surmounting Strickland’s high bar is never an easy task.”92 “Mere allegations of

89
Id. at 177. See Riley v. State, 585 A.2d 719, 721 (Del. 1990) (rejecting ineffective assistance
claim because its “underlying” errors were rejected on direct appeal).
90
Shinn v. Ramirez, 142 S. Ct. 1718, 1735 (2022) (internal quotation marks and citations omitted).
91
Ray v. State, --- A.3d ----, 2022 WL 2398442, at *10 (Del. July 1, 2022). See generally
Strickland v. Washington, 466 U.S. 668 (1984).
92
Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

17
ineffectiveness will not suffice.”93 To be ineffective, Trial Counsel’s alleged

mistakes must have “so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.”94

Strickland’s “well-worn” analysis proceeds in two steps.95 Jones first must

show that Trial Counsel’s representation “fell below an objective standard of

reasonableness[.]”96 Allegations of deficient performance are counteracted by “a

strong presumption that counsel’s conduct falls within a wide range of reasonable

professional assistance.”97 As a result, Jones must establish that “no reasonable

lawyer would have conducted the defense” as Trial Counsel did. 98 In evaluating

Jones’s burden, the Court uses a retrospective lens.99 A performance analysis

involves “reconstruct[ing] the circumstances of counsel’s challenged conduct . . .

from the counsel’s perspective at the time.”100 Necessarily, then, the scope of

performance review is limited to decisions made and excludes consideration of

93
Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
94
Shockley v. State, 565 A.2d 1373, 1376 (Del. 1989) (internal quotation marks omitted).
95
Ploof, 75 A.3d at 820.
96
Ray, 2022 WL 2398442, at *8 (internal quotation marks omitted).
97
Green, 238 A.3d at 174 (internal quotation marks omitted).
98
Swan v. State, 248 A.3d 839, 859 (Del. 2021) (internal quotation marks omitted).
99
E.g., Neal v. State, 80 A.3d 935, 942 (Del. 2013).
100
Ray, 2022 WL 2398442, at *10 (internal quotation marks omitted).

18
results achieved.101 The outcomes of reasonable defense strategies and professional

judgments are “virtually unchallengeable.”102

Second, Jones must show that the deficiencies in Trial Counsel’s performance

“caused him substantial prejudice.”103 In other words, Jones must demonstrate “a

reasonable probability that, but for counsel’s professional errors, the result of the

proceeding would have been different.”104 “A reasonable probability means a

probability sufficient to undermine confidence in the outcome . . . .”105 "The

likelihood of a different result must be substantial[,] not just conceivable.”106 So

Jones “must make concrete allegations of actual prejudice and substantiate

them[.]”107 The Court will not find prejudice unless Trial Counsel’s errors were “so

serious as to deprive” Jones of a “fair trial, a trial whose result is reliable.”108

As explained below, neither one of Jones’s Claims shows that Trial Counsel

performed deficiently or prejudiced the defense.

1. The Acquittal Claim fails to show ineffective assistance.

101
E.g., Burns v. State, 76 A.3d 780, 788 (Del. 2013) (“[E]ven evidence of isolated poor strategy,
inexperience, or bad tactics does not necessarily amount to ineffective assistance of counsel.”
(alterations and internal quotation marks omitted)).
102
Swan, 248 A.3d at 859 (internal quotation marks omitted).
103
Ray, 2022 WL 2398442, at *8 (internal quotation marks omitted).
104
Id. at *11 (internal quotation marks omitted).
105
Green, 238 A.3d at 174 (internal quotation marks omitted).
106
Swan, 248 A.3d at 859 (internal quotation marks omitted).
107
Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996).
108
Strickland, 466 U.S. at 687.

19
 Jones first contends that Trial Counsel’s failure to move for acquittal against

Aggravated Menacing and PDWDCF was ineffective because there was no evidence

that he “attempted to stab” Frisby with the screwdriver.109 This misstates the law

and understates the facts. Sufficient evidence supported Jones’s convictions. And

an acquittal motion cannot be granted if sufficient evidence exists.110 So the Court

would have denied acquittal on both counts even if Trial Counsel moved for it.

a. An acquittal motion against the Aggravated Menacing charge
would have been denied.

Aggravated Menacing requires the State to prove, among other things, that the

defendant “display[ed] what appears to be a deadly weapon[.]”111 The “appearance”

element is satisfied so long as the victim subjectively believes that the object may

cause death or serious physical injury.112

Here, as the Supreme Court observed,113 Jones put the screwdriver against

Frisby’s chest after violently beating her. He then said that he would kill her if she

did not answer his questions. Frisby testified that she believed Jones would act on

his threat. All this testimony comprised sufficient evidence for a “rational [juror,]

109
Def.’s Am. R. 61 Mot. at 18.
110
See Del. Super. Ct. Crim. R. 29(a).
111
11 Del. C. § 602(b) (emphasis added).
112
See Graham v. State, 2004 WL 557168, at *3 (Del. Mar. 19, 2004) (Aggravated Menacing
“eliminate[s] the need for the State to prove that the displayed weapon, in fact, created a substantial
risk of death . . . . [T]he focus of the aggravated menacing statute is on the victim’s perception of
the threat rather than on the actual risk of danger.” (emphases added)).
113
Jones, 2020 WL 91815, at *3.

20
“viewing the evidence in the light most favorable to State,”114 to find that the

screwdriver subjectively appeared to Frisby as a deadly weapon. Accordingly, an

acquittal motion would have been denied. Jones suffered no prejudice.

Jones’s “attempted stabbing” logic misapprehends Aggravated Menacing.

Aggravated Menacing proscribes threatened use of what “appears to be deadly

weapon.”115 So the screwdriver did not actually need to be “deadly” for a jury to

find guilt.116 To Frisby, the screwdriver appeared deadly. Her testimony allowed a

rational juror to find that she believed the screwdriver—even if not actually used to

stab her—was capable of stabbing her. The credibility of her subjective belief was

for the jury to decide as a matter of fact, not the Court as a matter of law.117

Recognizing this, Trial Counsel did not move for acquittal, but rather tried to

cast reasonable doubt on Frisby’s perception. He argued that Jones’s mere

placement of the screwdriver against Frisby’s chest could not form a belief that he

would use the screwdriver to harm her. Trial Counsel supported this argument using

Frisby’s own testimony and the statements she made to the police. To the extent this

created an evidentiary conflict, the jury was free to—and did—resolve it against

114
Cline v. State, 720 A.2d 891, 892 (Del. 1998).
115
11 Del. C. § 602(b).
116
See Jones, 2020 WL 91815, at *3; Graham, 2004 WL 557168, at *3.
117
E.g., Poon v. State, 880 A.2d 236, 238 (Del. 2005) (“[I]t is sole province of the fact finder to
determine witness credibility, resolve conflicts in testimony, and draw any inferences from the
proven facts . . . . We will not substitute our judgment for the fact finder’s assessments in these
areas.” (citations omitted)).

21
Jones.118 The mere fact that the evidence may have been conflicting does not mean

the evidence was insufficient.119 Because the State introduced enough evidence for

the jury to decide who and what to believe, Trial Counsel’s acquittal motion, if filed,

would have been denied.

b. An acquittal motion against the PDWDCF charge would have
been denied.

Nor do Jones’s acquittal arguments undermine his PDWDCF conviction.

Indeed, the Supreme Court “implicitly rejected”120 Jones’s arguments on direct

appeal in finding “sufficient” evidence from which “the jury [could] infer . . . that

Jones was attempting to cause serious harm to Frisby, in spite of testimony that Jones

did not actually attempt to stab Frisby.”121 If sufficient evidence supported a

PDWDCF conviction, then sufficient evidence also precluded an acquittal motion.

Trial Counsel “cannot be found ineffective for failing to make futile arguments.”122

118
See, e.g., Chao v. State, 604 A.2d 1351, 1363 (Del. 1992) (“Even if a witness’[s] testimony was
evasive, conflicting, or severely impaired, the jury has a right to believe as much of it as they
believe proper.” (internal quotation marks omitted)), overruled on other grounds by Williams v.
State, 818 A.2d 906 (Del. 2002).
119
E.g., Lemons v. State, 32 A.3d 358, 362 (Del. 2011) (“Evidence that is insufficient to support a
conviction warrants reversal, but the mere fact that the evidence is in conflict does not.”).
120
Green, 238 A.3d at 177.
121
Jones, 2020 WL 91815, at *4.
122
State v. Prince, 2022 WL 211704, at *7 (Del. Super. Ct. Jan. 24, 2022). See also State v.
Hammond, 2011 WL 4638778, at *3 (Del. Super. Ct. Sept. 27, 2011) (“There is no requirement,
anywhere, that a defense attorney must discuss futile claims with a client.”); State v. Manley, 1996
WL 527322, at *6 (Del. Super. Ct. Aug. 1, 1996) (“‘[T]he defense bar . . . [is] not obligated to
make futile arguments on behalf of . . . clients.’” (quoting United States v. Zafiro, 945 F.2d 881,
886 (7th Cir. 1991), aff’d, 506 U.S. 534 (1993))).

22
 True, the Supreme Court applied plain error review. And plain error prejudice

can be a “more exacting” standard than Strickland prejudice.123 But neither type of

prejudice will be found where counsel makes a “tactical decision[]” to “pursue a

particular defense and eschew another.”124 Here, Trial Counsel made the very same

deadly weapon and insufficiency arguments to the jury that Jones has recasted as

bases for acquittal now. By reasserting Trial Counsel’s arguments, Jones has all but

conceded Trial Counsel’s effectiveness.125

Even if the Supreme Court’s opinion did not exist, the Court still would find

that sufficient evidence supports Jones’s PDWDCF conviction.

Dangerous instruments become “deadly weapons if, under the circumstances

of their use, they had the potential” to inflict death or serious physical injury.126 “The

‘circumstances’ to be considered must include the actor’s intent and manner of

use.”127 Here, the jury heard that Jones forced the screwdriver against Frisby’s

123
Neal, 80 A.3d at 948.
124
Stansbury v. State, 591 A.2d 188, 191 (Del. 1991).
125
Jones also cites isolated language in the Supreme Court’s opinion to suggest that the Supreme
Court would have reversed his convictions if Trial Counsel did not prejudice the standard of
review. Def.’s Am. R. 61 Br. at 18, 20. This begs the question. If Trial Counsel was not ineffective
at trial, then his effects on appellate review would be irrelevant. See State v. Stevenson, 2020 WL
5517193, at *2–3 (Del. Super. Ct. Sept. 10, 2020); State v. Anderson, 2017 WL 129044, at *4 (Del.
Super. Ct. Jan. 13, 2017); see also Ray, 2022 WL 2398442, at *10 (explaining that ineffectiveness
analysis is retrospective and considers counsel’s decisions at the time they were made). Jones fails
to show that Trial Counsel was ineffective at trial. So the Court declines to join Jones in reading
between the Supreme Court’s lines.
126
Johnson, 711 A.2d at 27 (emphasis added). Accord Taylor v. State, 679 A.2d 449, 454 (Del.
1996).
127
Carter v. State, 933 A.2d 774, 778 (Del. 2007) (emphasis omitted).

23
chest—a “vulnerable part of [her] body”128—after he unplugged all the lights, held

her down, and beat her to speechlessness. For good measure, Jones kept the

screwdriver on her chest as he said that he would kill her. Frisby testified that she

believed him. She was scared, nervous, and hyperventilating as she stood at

screwdriver-point. Under these circumstances, a jury easily could find the

screwdriver “had the potential” to cause Frisby serious physical injury and that Jones

attempted to use it that way.129

More than supported, these findings were uniquely reserved for the jury.

Questions of intent, and the circumstances surrounding it, involve factual issues not

amenable to resolution on a dispositive motion.130 Similarly, attempts are considered

“jury issue[s]” that “depend[] on the surrounding circumstances.”131 Indeed, the

choice to find an attempt is “entirely left to the discretion of the jury[.]” 132 In

128
Id. at 779. Jones tries to analogize his conduct to hitting Frisby on the hand “with the plastic
end of a lacrosse stick.” Def.’s Am. R. 61 Mot. at 17. This metaphor is, at best, inapt. The
Supreme Court has made clear that deadly weapon analysis disregards imaginary scenarios. See
Carter, 933 A.2d at 778–79. Jones used a screwdriver, not a lacrosse stick, and a screwdriver to
the chest is more likely to “cause[] serious injury or death” than a slap on the wrist. Id. at 779.
129
Johnson, 711 A.2d at 27.
130
E.g., 11 Del. C. § 307 (1995); State v. Herbert, 2022 WL 811175, at *3–5 (Del. Super. Ct. Mar.
17, 2022).
131
Bright v. State, 740 A.2d 927, 934 (Del. 1999). Although Jones was not charged with an
attempt, the deadly weapon definition uses that word without defining it. “Undefined words in the
criminal code are to be given their commonly accepted meaning, unless they are specifically
defined elsewhere in Title 11.” Andrews v. State, 34 A.3d 1061, 1063 (Del. 2011) (internal
quotation marks omitted). Attempt is specifically defined in Title 11, see 11 Del. C. § 531 (1995),
and caselaw has explained that attempts are jury issues, e.g., Gronenthal v. State, 779 A.2d 876,
881 (Del. 2001).
132
Gronenthal, 779 A.2d at 881. See also Delaware Criminal Code with Commentary § 532 cmt.
(1973) (observing legislative intent to define attempt flexibly so that jury has leeway in

24
exercising its discretion, the jury was not required to “believe even uncontroverted

testimony” about how Jones used or did not use the screwdriver.133 The jury also

was permitted to credit circumstantial evidence of Jones’s use over direct evidence

of it.134 Whatever type of evidence the jury believed, the evidence it believed was

sufficient. An acquittal motion would have been denied.

Rather than filing a futile motion, Trial Counsel concentrated his efforts on

convincing the jury that the screwdriver was not a deadly weapon. In doing so, Trial

Counsel (i) developed a novel statutory interpretation; (ii) extracted useful testimony

on cross; (iii) structured his summation to make the screwdriver look like a non-

deadly weapon; and (iv) persuaded the Court to amend the jury instructions to

include language that favored the defense’s presentation of the facts. The Court

ultimately gave the jury Jones’s preferred instructions, all of which the Supreme

Court deemed “proper[]” on direct appeal.135 The jury found Jones guilty anyway.

Trial Counsel did what he could to show the jury otherwise. He was unsuccessful,

but not ineffective.136 Jones suffered no prejudice from the absence of a motion that

was bound to lose.

determining whether attempted act occurred); see generally Hassan-El v. State, 911 A.2d 385, 392
(Del. 2006) (“The law of attempts . . . seeks to prevent even the preparations [of] crime . . . .”
(internal quotation marks omitted)).
133
Poon, 880 A.2d at 238.
134
See Lemons, 32 A.3d at 362–63.
135
Jones, 2020 WL 91815, at *4.
136
See Harrington, 562 U.S. at 110 (“[T]here is no expectation that . . . counsel will be a flawless
strategist or tactician[.]”); United States v. Hasting, 461 U.S. 499, 508–09 (1983) (“[T]aking into

25
 Undeterred, Jones continues to insist there was no evidence that he “actually

attempted to stab” Frisby.137 But that shred of self-control, although fortuitous for

Frisby, would not have rewarded Jones with a judge-made acquittal.

A stab is one way to attempt to use a sharp object lethally, but not the only

way. For example, one might attempt to use a screwdriver lethally by threatening to

kill someone while holding it.138 Even less subtly, one also might attempt to use a

screwdriver lethally by thrusting it against a woman’s unprotected chest.139 Either

way, Jones points to no authority requiring an object to inflict or nearly inflict a

certain degree of damage before it transforms to a deadly weapon.

Nor could he. PDWDCF proscribes “possession,” not use, “of a deadly

weapon.” As a result, the “PDWDCF statute does not require that the victim even

be aware that the defendant possesses a deadly weapon.”140 Imputing Jones’s

attempted stabbing requirement to the PDWDCF statute would equate possession of

account the human fallibility of the participants, there can be no such thing as an error-free, perfect
trial, and . . . the Constitution does not guarantee [one].”); Glenn v. Wynder, 743 F.3d 402, 407 (3d
Cir. 2014) (“[T]o satisfy due process, [a defendant’s] trial must have been fair; it need not have
been perfect.”); Thompson, 2022 WL 1744242, at *17 (“[T]he ineffective assistance standard does
not require a defense lawyer to be perfect. It requires only that the lawyer’s strategies be
reasonable.” (citations omitted)); Khan v. Capra, 2020 WL 6581855, at *5 (S.D.N.Y. Nov. 10,
2020) (“A defendant is entitled to a competent lawyer, not an omniscient one.” (internal quotation
marks omitted)).
137
Def.’s Am. R. 61 Mot. at 18.
138
Cf. DeJesus v. State, 655 A.2d 1180, 1203–05 (Del. 1995) (threats in connection with attempted
robbery); State v. Stovall, 1996 WL 659026, at *3–4 (Del. Super. Ct. Sept. 30, 1996) (threats in
connection with attempted acts of intimidation).
139
Cf. Carter, 933 A.2d at 778 (“[A] blow to an unprotected human head . . . presents quite a
different circumstance than a . . . blow to an unprotected hand.”).
140
Graham, 2004 WL 557168, at *3 (emphasis added).

26
a weapon with using a weapon, effectively merging PDWDCF with the substantive

offense to which it relates.141 Equally problematic, such a requirement would

frustrate the statute’s goals. By enacting PDWDCF, the legislature intended to

“deter possession . . . and thus obviate . . . enhanced danger . . . posed to the victim[]”

before it materializes into something worse.142 A stabbing requirement would not

“give effect to the legislature’s intent”—it would vitiate it.143 Accordingly, the

Acquittal Claim fails.

2. The Severance Claim fails to show ineffective assistance.

Finally, the Court turns to the Severance Claim. Jones argues that the

presence of the Non-Comp Bond charges “could [have] influence[d]” the jury’s

“ability to compartmentalize their judgment . . . with regard[] to the different

charges.”144 According to Jones, the Letter “left the impression” that he was an

“incarcerated felon who was unable to post bail.”145 Jones then concludes, without

evidence, that Trial Counsel’s failure to sever the Non-Comp Bond charges was

“highly prejudicial.”146

141
But see id. at *3 (discerning “legislative intent to permit cumulative sentencing for” Aggravated
Menacing and its associated PDWDCF).
142
Id.
143
Ross v. State, 990 A.2d 424, 428 (Del. 2010).
144
Def.’s Am. R. 61 Mot. at 24.
145
Id. at 21. Jones also argues in passing that the Letter’s references to his potential punishment
was prejudicial. Id. at 25. But this hypothesis, like the others discussed below, lacks particularized
support.
146
Id. at 25.

27
 The difficulty with Jones’s position is that it lies in phrases like “could well”

and words like “perhaps.” Jurors are the finders of fact. The jury speaks only

through its verdict.147 Courts and attorneys cannot peer inside jurors’ minds to see

what they are thinking about or not thinking about. Instead, the law looks to the

language of the jury instructions, the purpose of which is to objectively inform the

jury of the law that must applied to the facts as the jury finds them.148 Here, the

Court instructed the jury on the elements of Non-Comp Bond, none of which hinges

on what Jones said in the Letter. “Juries are presumed to follow the court’s

instructions.”149 Jones offers no basis for finding this jury did not.

Jones’s speculative approach falters for additional reasons. For one thing,

Jones bears the burden of demonstrating “substantial prejudice resulting from”

joinder.150 Joinder prejudice is fact-specific and must be actual151 and so Jones’s

“hypothetical assertion of prejudice is not enough” to meet his burden.152 The Court

147
See State v. Terreros, 2021 WL 5577253, at *5 (Del. Super. Ct. Nov. 29, 2021).
148
See, e.g., Bullock v. State, 775 A.2d 1043, 1047 (Del. 2001) (explaining that primary purpose
of jury instructions is to objectively inform jury of law that must be applied to disputed facts); cf.
Schmuck v. United States, 489 U.S. 705, 720–21 (1989) (adopting “objective elements” approach
to instructing juries on lesser-included offenses, which reduces “nuances of inference” and makes
instructions easier to apply and verdicts easier to review).
149
Phillips v. State, 154 A.3d 1130, 1138 (Del. 2017).
150
Skinner v. State, 575 A.2d 1108, 1118 (Del. 1990).
151
E.g., Wiest v. State, 542 A.2d 1193, 1195 (Del. 1988).
152
Jackson v. State, 990 A.2d 1281, 1287 (Del. 2009).

28
would have denied severance if it were presented with the “unsubstantiated claims

of prejudice” Jones iterates now.153

For another, barebones prejudice allegations doom ineffective assistance

claims.154 To establish prejudice, Jones needed to allege with particularity how Trial

Counsel’s failure to move to sever “create[d] . . . a serious risk” of “compromis[ing]”

one of Jones’s “specific trial rights” or “prevent[ed] the jury from making a reliable”

verdict.155 He did not. Jones’s high-level shots at the Letter miss those marks.156

Even so, Jones’s prejudice, if any, is too remote to find that a severance

motion would have changed the outcome. Jones overlooks that the Letter would

have been admissible in a severed Aggravated Menacing and PDWDCF case. In

fact, he does not discuss admissibility at all.

“As a general matter,” joinder prejudice arises where “the jury may use the

evidence of one of the crimes to infer a general criminal disposition of the defendant

in order to find guilt of the other crime or crimes[.]”157 But if the disputed evidence

would have been “admissible at a separate trial,” then “there would be no unfair

153
Sexton v. State, 397 A.2d 540, 545 (Del. 1979), overruled on other grounds by Hughes v.
State, 437 A.2d 559 (Del. 1981). Accord Jackson, 990 A.2d at 1287.
154
E.g., Hoskins v. State, 102 A.3d 724, 730 (Del. 2014) (“The failure to state with particularity
the nature of the prejudice experienced is fatal to a claim of ineffective assistance of counsel.”
(internal quotation marks omitted)).
155
Lloyd v. State, 249 A.3d 768, 778 (Del. 2021) (internal quotation marks omitted).
156
See, e.g., Richardson v. State, 3 A.3d 233, 240 (Del. 2010) (“[T]he burden is on the defendant
to make concrete and substantiated allegations of prejudice.”).
157
Caldwell v. State, 780 A.2d 1037, 1055 (Del. 2001) (internal quotation marks omitted).

29
prejudice in having a joint trial.”158 Under Rule 404(b), evidence of “other crimes”

may be admissible to prove “motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.”159 This list may be

expanded in accordance with the proffered evidence’s “logical relevancy.”160 As a

result, “acts, conduct, and declarations of the accused occurring after the commission

of an alleged offense which are relevant and tend to show a consciousness of guilt

or a desire or disposition to conceal the crime are admissible in evidence.”161

The Letter was logically relevant to, and completed, the State’s story:

“Jealousy . . . connected with an intimate relationship can be brutal.”162 Through the

Letter, Jones deployed the psychological control he exerted on Frisby to manipulate

her into being an uncooperative witness. The State argued that this exemplified

Jones’s domestic abuse.163 That abuse tends to corroborate Jones’s motive and intent

for the attack—e.g., possessiveness; an accusation of infidelity. And his efforts to

suppress Frisby’s testimony tend to show his desire to conceal his crimes. The

Letter, then, would further support a finding that Jones committed Aggravated

Menacing, PDWDCF and all the other charges.

158
Monroe v. State, 28 A.3d 418, 426 (Del. 2011).
159
Del. R. Evid. 404(b)(2).
160
E.g., Getz v. State, 538 A.2d 726, 730–31 (Del. 1988).
161
Monroe, 28 A.3d at 427.
162
A54 at 61:10–11 (State’s Opening Statement).
163
See, e.g., A65 at 105:18–23, 106:3–4 (Sidebar).

30
 In the end, the jury did not need the Letter to know that Jones faced serious

felony charges: he also was tried on possession of a deadly weapon during the

commission of a felony.164 Punishment and criminal status were central to Jones’s

trial even without the Non-Comp Bond charges. So Trial Counsel reasonably

determined that further emphasizing the severity of the charges would have been

disadvantageous.165 If Jones suffered any prejudice, it was caused by his own

conduct, not Trial Counsel’s performance. Accordingly, the Severance Claim fails.

IV. CONCLUSION

Jones failed to show that Trial Counsel represented him ineffectively.

Accordingly, his Rule 61 motion is DENIED.

IT IS SO ORDERED.

/s/ Jan R. Jurden
Jan R. Jurden, President Judge

164
The parties identified as much in discussing the possibility of a curative instruction. See A65
at 106:11–21 (Sidebar).
165
See A100 at 112:14–23, 113:1–4 (Trial Counsel explains that seeking a curative instruction
would not be “strategically the best move”). E.g., Baker v. State, 906 A.2d 139, 156 (Del. 2006)
(attributing failure to request a curative instruction to “trial strategy”); see Rhoades v. State, 2016
WL 7011352, at *2 (Del. Nov. 30, 2016) (same in mistrial context).

31