Thompson v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

AARON THOMPSON, §
§ No. 220, 2022
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 1602016732(N)
STATE OF DELAWARE §
§
Appellee. §

Submitted: March 8, 2023
Decided: April 18, 2023

Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.

Upon appeal from the Superior Court. AFFIRMED.

John P. Deckers, Esquire, LAW OFFICE OF JOHN P. DECKERS, P.A.,
Wilmington, Delaware, for Defendant Below, Appellant Aaron Thompson.

Matthew C. Bloom, Esquire, DELAWARE DEPARTMENT OF JUSTICE,
Wilmington, Delaware, for Appellee State of Delaware.
SEITZ, Chief Justice:

A Superior Court jury convicted Aaron Thompson of multiple crimes for his

role in the 2013 double murder of Joe and Olga Connell. We affirmed his

convictions on direct appeal. Thompson moved for postconviction relief under

Superior Court Criminal Rule 61. The Superior Court denied his motion. The court

found that Thompson’s trial counsel was not constitutionally ineffective for failing

to investigate the connection between Thompson and a property near the crime scene

at the time of the killings. The court also held that trial and appellate counsel did

not have a conflict of interest when he represented the State’s ballistics expert in an

unrelated criminal proceeding during Thompson’s direct appeal. Thompson has

appealed from the Superior Court’s denial of his motion for postconviction relief.

For the reasons set forth below, we affirm the Superior Court’s judgment.

I.

A.

We briefly summarize the facts from Thompson’s direct appeal.1 Christopher

Rivers and Joe Connell ran an auto repair shop. Each had taken out a $1 million life

insurance policy on the other. Rivers solicited Joshua Bey, a customer who

occasionally sold drugs to him, to kill Joe Connell and his wife. Bey contacted a

third person, Dominque Benson, to carry out the murder. Benson in turn reached

1
Thompson v. State, 205 A.3d 827, 832 (Del. 2019).
2
out to Aaron Thompson to assist him. The double murder took place in the early

morning hours of September 22, 2013, in front of the Connells’ Paladin Club

condominium in Wilmington as they returned home from dinner.

During the murder investigation, the police arrested Bey for making false

statements about his connection with Rivers. At the time, Bey had multiple felony

convictions and was on probation, which meant his arrest triggered a violation of his

probation charge. Before his trial, Bey agreed to provide the State with information

about the killings. He implicated Rivers, Benson, and Thompson in the murders.

Bey eventually pleaded guilty to first-degree conspiracy and admitted to a probation

violation in exchange for the State dropping other charges. His plea deal allowed

him to avoid being declared an habitual offender and a possible life sentence.

In 2016, the State tried Rivers and Benson for the double murders. Rivers

was convicted on all counts, but Benson was acquitted on all charges except first-

degree conspiracy.

B.

Thompson’s trial followed in 2017. The State charged him with two counts

of first-degree murder, two counts of possession of a firearm during the commission

of a felony, and one count of first-degree conspiracy. Bey testified at Thompson’s

trial and provided details about how the murder conspiracy came to be, the prior

failed attempts to carry out the murders, and then the actual murders. The Superior

3
Court found that “Bey’s testimony played a pivotal role” in the trial.2 The court

explained that, due to Bey’s status as “a turncoat who accepted a plea offer in

exchange for incriminating his co-conspirators,” the State focused “on shoring up

Bey’s credibility” in several ways.3

First, the State used cell-site location information (“CSLI”) to show how cell

phones associated with Thompson moved to different locations. The data placed

him in the vicinity of the crime scene on the night of the murders and corroborated

Bey’s testimony. One phone was Thompson’s cell phone, and the other was a

disposable phone referred to as the “Kenny AAAA phone.”4 The State sought to

connect the Kenny AAAA phone to Thompson using payment records to purchase

minutes. CSLI evidence using call records showed that Thompson’s cell phone and

the Kenny AAAA phone moved in unison repeatedly between the area of the crime

scene and a nearby area of Wilmington.5 The back and forth between the two

locations in the leadup to the murders also matched Bey’s description of events as

2
Thompson, 2022 WL 1744242, at *2.
3
Id.
4
Id.
5
See App. to Answering Br. at B148–61; see also id. at B156 (“[B]oth phones are in the same
geographical location at 9:21 p.m, and they overlap right in the vicinity of the crime scene. . . .
And we can see that the cell sites overlap in that geographical location, again, they’re moving in
the same direction, moving and staying in the same location throughout the evening.”); id. at B157
(“[N]ow the phone moves away from the crime scene and then comes back into the area of where
it was earlier in the evening . . . . And so the phones are back in that sort of overlap of where they
were before . . . .”); id. at B158 (“We see again the phones are in the same geographical area that
they started in. They went over to the vicinity of the crime scene and now have both come back
to that same geographical area coincidentally.”).
4
Thompson had missed the first attempt to kill the Connells earlier that night and was

forced to try again when the couple returned home from dinner.6

The timing was also important as the final call before the murders was from

the Kenny AAAA phone at around 11:45 p.m. near the location of the crime scene.7

After a period without any calls from either phone, the police received a call

reporting the murders at around 1:28 a.m.8 Then, at 1:41 a.m., thirteen minutes after

the first call to the police reporting the murders, a call was made to Thompson’s

girlfriend from the same nearby area of Wilmington using the Kenny AAAA phone.9

The Superior Court described the CSLI as “incriminating.”10

Second, the State and the defense focused on the significance of a nearby

property at 20 Commerce Street in Wilmington just south of the Christina River off

Route 9. Thompson was a truck driver for Leonard’s Trucking, and his former

supervisor, Daniel Barrick, testified during the 2017 trial that 20 Commerce Street

was the location of one of the company’s yards.11 The location would be of future

6
See App. to Opening Br. at A188 (“I asked him what’s up? What happened? And he’s like . . .
the information was accurate . . . but he seen [sic] them too late because I guess . . . where he was
at there was a tree, so he seen him too late to go run down on him. So he was going to do it when
they come back in . . . . He was going to do it. Later on.”).
7
App. to Answering Br. at B246–47 (“By 11:38 [they] get the word [the Connells] are leaving in
about an hour. They still have time to drive to the Paladin Club. And where does the Kenny phone
hit at 11:45? In the vicinity of the Paladin Club.”).
8
Id. at B248.
9
Id. at B248–50.
10
Thompson, 2022 WL 1744242, at 3.
11
App. to Answering Br. at B225.
5
significance as Barrick provided Leonard’s Trucking locations in 2017, rather than

at the time of the murders in 2013.12 It was later revealed that Leonard’s Trucking

did not occupy the 20 Commerce Street location until 2014.13 Nevertheless, during

trial, the State and the defense used this mistaken information to their benefit.

The State zeroed in on 20 Commerce Street as the possible location near the

Christina River where Thompson traveled to and from the crime scene.14 It fell

within the area along the Christina River highlighted by CSLI evidence.15 Using

this specific address, the State was able to show that Thompson was only about a

seven-minute drive away from the crime scene.16 That 20 Commerce Street was a

Leonard’s Trucking location also meant that Thompson could lie in wait there

without drawing attention.17

The defense meanwhile sought to use the 20 Commerce Street location within

the CSLI-identified area to show that Thompson was at work instead of participating

12
Thompson, 2022 WL 1744242, at *4 (“[T]he State asked Thompson’s supervisor for Leonard’s
Trucking’s address. The State did not specify a timeframe. The supervisor answered, in the
present tense, that one of Leonard’s addresses is located on 20 Commerce Street.”) (internal
citations omitted).
13
See App. to Opening Br. at A369.
14
See id. at A335, A357–64.
15
See App. to Answering Br. at B199–200.
16
See App to Opening Br. at A335 (“Q: How long does it take to get from the Paladin Club to
Leonard’s Trucking? A: About seven minutes.”).
17
See id. at A357 (“The State would argue [20 Commerce Street] was a good place to wait; A
good place where he wouldn’t be noticed hanging around waiting, maybe for some further
instructions.”).
6
in a murder.18 Barrick testified that he was working remotely on Saturday,

September 21, 2013, the day before the murders, so he had not seen Thompson but

knew he was at work that morning.19 It was possible, according to Barrick, that

Thompson had taken on additional routes later that day and evening. Placing him at

20 Commerce Street provided the defense with a plausible alternative explanation

for his presence in the area.20 As the Superior Court explained, this furthered the

attempt to “portray[] Thompson as a hard worker who walked the straight-and-

narrow path and did not need extra money from a murder-for-hire scheme.”21

And third, the State called Carl Rone as a ballistics expert. At the time, Rone

was a Delaware State Police employee.22 The police did not recover the murder

weapon, so Rone’s testimony and peer-reviewed expert reports focused on

examination of the shell casings found at the murder scene.23 He “testified that some

of the bullets were fired from the same gun. But he was unable to opine on whether

the remaining bullets were fired from one gun or multiple guns.”24 Rone’s testimony

did not speak to the identity of a possible shooter. The Superior Court described

18
See App. to Answering Br. at B342 (“[F]rom a strategic point of view, it was the defense’s
position to attempt to put Mr. Thompson at work on the evening in question . . . .”) (Maurer Aff.).
19
Id. at B225.
20
See id. at B239–40.
21
Thompson, 2022 WL 1744242, at *19.
22
App. to Opening Br. at A100.
23
Thompson, 2022 WL 1744242, at *2.
24
Id.
7
Rone as having “played a very minor role in the trial” and assessed Rone’s testimony

as doing little more than “curtailing the so-called ‘CSI effect.’”25

After the October 2017 trial, the jury convicted Thompson of all charges. The

trial judge sentenced him to two terms of life imprisonment plus 45 years. With the

assistance of trial counsel, he filed a direct appeal in April 2018. We affirmed his

convictions in February 2019.

C.

Two events came to light during and after Thompson’s direct appeal. First,

the State indicted Carl Rone in May 2018 for falsifying State Police time sheets in

2016 and 2017. After filing Thompson’s opening brief on direct appeal,

Thompson’s counsel agreed to defend Rone against the charges brought by the State.

Rone eventually pled guilty to misdemeanor theft charges. Also, after a private

investigator interviewed Barrick as part of the postconviction relief investigation,

they discovered that Leonard’s Express did not occupy 20 Commerce Street at the

time of the murders in 2013.26

In his Superior Court postconviction relief motion, Thompson claimed that

his counsel was ineffective for three reasons: (1) failing to investigate whether the

25
Id. at *2, *10.
26
App. to Opening Br. at A369 (“Barrick agreed to speak and after reviewing the company’s lease
was able to confirm Leonard’s Express occupied the property at 20 Commerce Street on
01/29/14.”).
8
trucking company occupied 20 Commerce Street at the time of the murders and

failing to object to the State’s use of that property at trial; (2) counsel’s concurrent

representation of Rone while Thompson’s case was on appeal, which allegedly

created an actual and prejudicial conflict of interest; and (3) counsel’s failure to make

a meaningful challenge to payment records used to link Thompson with the Kenny

AAAA phone.

The Superior Court denied Thompson’s motion. The court found that the 20

Commerce Street claim failed for lack of prejudice given the alternative evidence,

such as CSLI, that established Thompson’s guilt. It also ruled that the payment

records claim failed to show deficient performance by counsel and prejudice. As the

court held, counsel attempted to exclude the evidence at trial, and, in any case, there

was additional evidence of Thompson’s guilt and his connection to the Kenny

AAAA phone.27 For the claims involving Rone, the analysis was different.28 The

court found that Thompson failed to show either an actual conflict or prejudice.29

27
The court, for example, relied on Bey’s testimony and CSLI evidence as sufficient grounds for
establishing Thompson’s guilt and pointed to the call with Thompson’s girlfriend on the Kenny
AAAA phone as grounds for connecting him to that phone. Thompson, 2022 WL 1744242, at *18.
28
Compare Strickland v. Washington, 466 U.S. 668, 687 (1984) (“A convicted defendant’s claim
that counsel’s assistance was so defective as to require reversal of a conviction . . . has two
components. First, the defendant must show that counsel’s performance was deficient. . . . Second,
the defendant must show that the deficient performance prejudiced the defense.”) with Cuyler v.
Sullivan, 446 U.S. 335, 349–50 (1980) (“[A] defendant who shows that a conflict of interest
actually affected the adequacy of his representation need not demonstrate prejudice in order to
obtain relief.”).
29
See Thompson, 2022 WL 1744242, at *15 (“Thompson was required to show an actual conflict.
He did not. Without an actual conflict, Thompson must show prejudice. He cannot.”) (internal
citations omitted).
9
According to the court, there was no actual conflict as Rone and Thompson did not

have materially diverging interests that would have adversely impacted counsel’s

representation of Thompson on appeal. And the court found that Rone’s testimony

played a very minor role in securing Thompson’s conviction.30

Thompson has appealed the Superior Court’s rulings regarding the 20

Commerce Street property and the conflicted representation claim.

II.

“We review the Superior Court’s denial of postconviction relief for abuse of

discretion.”31 “We review legal or constitutional questions, including ineffective-

assistance-of-counsel claims, de novo.”32

A.

In Wheeler v. State, we recently summarized the elements of an ineffective

assistance of counsel claim:

[A defendant] must show “first, that . . . counsel’s representation fell
below an objective standard of reasonableness, and second, that the
deficiencies in counsel’s representation caused him substantial
prejudice.” These are the frequently cited “well-worn standards”
applicable to ineffective-assistance-of-counsel claims announced by
the United States Supreme Court nearly four decades ago in Strickland
v. Washington. We may uphold the denial of an ineffective-assistance

30
Id. at *16 (“The State proved Thompson’s guilt without Rone and so new evidence that may
have generally impeached his character would not have resulted in a new trial or conviction
reversal. Accordingly, the Conflict Claims fail for lack of prejudice.”).
31
Cabrera v. State, 173 A.3d 1012, 1018 (Del. 2017).
32
Green v. State, 238 A.3d 160, 173 (Del. 2020).
10
 claim without addressing the reasonableness of trial counsel’s
performance if prejudice is lacking.33

First, Thompson argues that counsel was ineffective for failing to investigate

who leased the 20 Commerce Street property at the time of the murders and for

failing to object to the State’s use of that address as a staging point for the murders.

We are unpersuaded for several reasons. As an initial matter, it is reasonable to

assume that Thompson knew that the 20 Commerce Street property was not a

Leonard’s Trucking location at the time his counsel suggested he worked there.

After all, he worked for the company at the time. He could have easily informed his

trial counsel of the mistake. That he stayed silent supports a second and equally

important point – an investigation by counsel into the 2013 lessee of 20 Commerce

Street and lodging an objection to the State’s arguments would have undermined

Thompson’s defense.

At trial, defense counsel’s strategy was “to attempt to put Mr. Thompson at

work on the evening in question apart from the location of the homicide scene.”34

CSLI evidence placed Thompson in an area south of the Christiana River that

included 20 Commerce Street. Thompson’s counsel was able to attempt to explain

Thompson’s presence in the area near the crime scene by pointing to 20 Commerce

33
Wheeler v. State, 2023 WL 2886392, at *7 (Del. Apr. 11, 2023) (first quoting Green, 238 A.3d
at 174 then citing Strickland, 466 U.S. at 697–98).
34
App. to Answering Br. at B342. It was defense counsel that raised whether the Leonard’s
Trucking yard at 20 Commerce Street fell into the relevant CSLI zone. See id. at B199–200.
11
Street, then believed to be a Leonard’s Trucking yard. His counsel used the 20

Commerce Street location to Thompson’s advantage at trial. Thus, Thompson has

not overcome the “strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.”35

B.

Under Strickland v. Washington, an attorney laboring under a conflict of

interest presents “one type of actual ineffectiveness claim.”36 In Cuyler v. Sullivan,

the United States Supreme Court held that, before declaring an allegedly conflicted

counsel ineffective under Strickland, the defendant must show there was an actual

conflict of interest, and the conflict adversely affected counsel’s performance.37 In

other words, an actual conflict of interest must exist “with respect to a material

factual or legal issue or to a course of action,”38 and the conflict must have “adversely

affected his lawyer’s performance.”39 If the defendant demonstrates an actual

conflict of interest that materially affected his performance, there is a presumption

that the defendant suffered prejudice by the conflicted representation.40

35
Strickland, 466 U.S. at 689.
36
Id. at 692.
37
See Sullivan, 446 U.S. at 348–50; see also Purnell v. State, 254 A.3d 1053, 1105 (Del. 2021)
(“An ‘actual conflict’ exists when a movant can show that counsel actually had divided loyalties
that affected his or her performance.”).
38
Lewis v. State, 757 A.2d 709, 718 (Del. 2000) (quoting Sullivan, 446 U.S. at 356 n.3 (Marshall,
J. concurring in part and dissenting in part)).
39
Sullivan, 446 U.S. at 348.
40
See id. at 349–50.
12
 Thompson claims that counsel’s simultaneous representation of Rone had an

adverse impact on his defense. As he argues, the conflict precluded counsel from

pursuing a thorough investigation into Rone that would have thrown his testimony

into doubt. According to Thompson, following Rone’s arrest,

trial and appellate counsel had a duty to conduct additional
investigation to determine the relationship between Rone’s acts of
thievery and deceit, and the testimony and examination and testing of
evidence admitted at Appellant Thompson’s trial. Such investigation
could have developed further evidence of misconduct by Rone, and led
to additional criminal sanctions against him. That is what Appellant
Thompson needed of his counsel after Rone’s arrest in early May, 2018.
Counsel’s conflicting duty of loyalty to his new client, however,
prevented him from taking this course of action.41

While Rone’s criminal charges and misdemeanor conviction are regrettable,

Thompson has not shown how Rone’s testimony was material to any of Thompson’s

defenses. At trial, the State relied heavily on Bey’s testimony and corroborating

evidence, not on Rone’s testimony about weapons or ammunition. Also, the new

evidence of time sheet falsification would only impeach Rone’s general credibility,

and not his specific peer-reviewed report and testimony about the shell casings.42

41
Opening Br. at 34. The order of events is notable here as Rone was indicted after counsel filed
the Opening Brief in Thompson’s direct appeal, meaning there was no conflict or information that
counsel would have been aware of at that stage of the proceedings.
42
See Purnell, 254 A.3d at 1098–99 (“Generally, to be more than ‘merely’ impeaching or
cumulative, new evidence attacking the weight or credibility of a witness’s trial evidence attacks
the credibility of the witness in the case at bar specifically, rather than impeaching the witness’s
credibility in general.”); see also State v. Pierce, 2018 WL 4771787, at *5 (Del. Super. Ct. Oct. 1,
2018) (finding that independent corroboration of Rone’s role in the chain of custody decreased the
significance of Rone’s credibility).
13
Thus, counsel did not face a decision where his representation of one client required

disadvantaging the other. As the Superior Court explained, “Trial Counsel left Rone

out of Thompson’s appeal because Rone was of no use to Thompson on appeal, not

because of some conflicting interest with Rone.”43

This is not the first case dealing with the fallout from Rone’s arrest and

conviction. A number of defendants have tried to use Rone’s falsification of time

sheets to upset convictions.44 But “every court” to consider the issue has concluded

that “evidence that tends to impeach Rone’s character is not a ground for invalidating

a conviction unless Rone was ‘vital’ to proving the defendant’s guilt.”45 General

character impeachment of Rone in this case was neither vital to Thompson’s

conviction nor does it suggest that Rone crossed the line from falsifying time sheets

to providing a compromised expert report and testimony.

Thompson claims that “Rone’s work, handling of evidence, and testimony,

were essential components of the State’s case.”46 According to Thompson, “the

43
Thompson, 2022 WL 1744242, at *10.
44
See id. at *12 n.115 (listing cases where Rone acted as a witness for the State).
45
Id. at *12; see, e.g., Fowler v. State, 194 A.3d 16, 27 (Del. 2018) (remanding for new trial
because the State had no other reliable evidence other than Rone’s testimony and Rone’s reliability
was critical to observations he had made due to specific subjective methodology used); Dixon v.
State, 258 A.3d 146 (Del. 2021) (“Dixon has not shown how Rone’s criminal convictions
undermined the credibility of Rone’s testimony in this case.”); Sierra v. State, 242 A.3d 563, 571
(Del. 2020) (“Rone’s testimony was not so critical in this case . . . .”); State v. Romeo, 2019 WL
918578, at *29 (Del. Super. Ct. Feb. 21, 2019), aff’d, 219 A.3d 995 (Del. 2019) (“Romeo has
failed to articulate how the issue of Rone’s credibility has created a significant change in the factual
circumstances of his case. Romeo’s argument overlooks the fact that Rone’s testimony was not at
all vital to Romeo’s conviction.”).
46
Opening Br. at 36.
14
State’s presentation would have been incomplete without Rone’s testimony” as it

“tended to show that the decedents were killed intentionally, most likely by two

firearms and second, that the State conducted a thorough professional

investigation.”47

The argument, however, lacks support in the record and, in any case,

exaggerates Rone’s role in the trial. It was undisputed that the murders were

intentional and that the perpetrators used a firearm as the murder weapon. Without

the actual weapon, Rone could not provide any further opinion. And testimony from

other individuals tended to show a thorough investigation by the State. Beyond

Rone, the trial included testimony from a New Castle County detective about

ballistics evidence, a medical examiner regarding post-mortem autopsies, and an FBI

special agent regarding CSLI evidence.48

Finally, Thompson attempts to characterize counsel’s concurrent

representation as a “positional” conflict of interest. A positional conflict “arises

47
Id. at 43–44.
48
App. to Answering Br. at B1–76; B77–119; B148. Thompson also argues that the Delaware
Lawyers’ Rules of Professional Conduct and the ABA Standards for the Defense Function should
frame the conflict issue. Under Strickland, however, our review is constitutional under the Sixth
Amendment, not by applying ethical standards. See 466 U.S. at 687. For example, under the
ethical rules, a “significant risk of a conflict might raise ethical issues,” D EL. LAWYERS’ R. PROF’L
CONDUCT 1.7, but the United States Supreme Court has required an actual conflict to support an
ineffective assistance of counsel claim. See Sullivan, 446 U.S. at 350 (“We hold that the possibility
of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of
his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely
affected his lawyer’s performance.”).
15
when two or more clients have opposing interests in unrelated matters” that would

require a lawyer to “argue both sides of the same legal question.”49 Thompson

contends that counsel’s representation of Rone precluded him from taking various

courses of action that would have favored him but would have also disadvantaged

Rone by further exposing his dishonesty. Thompson believes, for example, that an

unconflicted counsel would have looked deeper into Rone’s misconduct to

determine “whether Rone’s work product was also infected by dishonesty” in the

hopes of undermining the reliability of the ballistics report used in the Connell

homicide investigation.50

While such an investigation, if fruitful, would have been damaging to Rone,

it would not present a positional conflict that would have required counsel to take

conflicting positions on “the same legal question.” As the Superior Court helpfully

summarized, “[i]f Trial Counsel were successful for Thompson, that would not mean

Rone falsified his time sheets. If Trial Counsel were successful for Rone, that would

not mean Thompson murdered the Connells.”51 Rather, Thompson merely

49
See Williams v. State, 805 A.2d 880, 881 (Del. 2002). In Williams, a defense attorney faced a
situation where in one case he had to argue that the Superior Court should not have given great
weight to a jury’s 10-2 recommendation in favor of the death penalty for his client. Meanwhile,
in another case, he had to argue that a jury’s 2-10 vote rejecting the death penalty for his client
should have been given great weight by the Superior Court. Id.
50
Reply Br. at 9.
51
Thompson, 2022 WL 1744242, at *14.
16
repackages his prior arguments that sought to show the presence of an actual conflict

of interest.

III.

We affirm the Superior Court’s judgment.

17