State v. Calhoun

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
)
v. ) I.D. No. 1804000397
)
) Cr. A. Nos. IN18-04-0406 – 0411,
CHAON CALHOUN, ) and IN18-07-1843 – 1845.
Defendant. )

Submitted: October 23, 2023
Decided: January 23, 2024

MEMORANDUM OPINION AND ORDER

Upon Defendant Chaon Calhoun’s Motion for Postconviction Relief,
DENIED.

Brian L. Arban, Esquire, Deputy Attorney General, DEPARTMENT OF JUSTICE,
Wilmington, Delaware, for the State of Delaware.

Herbert W. Mondros, Esquire, RIGRODSKY LAW, P.A., Wilmington Delaware, Karl
Schwartz, Esquire, Catherine Trama, Esquire, WISEMAN & SCHWARTZ, Philadelphia,
Pennsylvania, for Chaon Calhoun.

WALLACE, J.
 On Easter Sunday 2018, Chaon Calhoun—who had a history of drug use and

mental health issues that had troubled him and his family for more than a decade—

went on a violent rampage at his mother’s home. In the end, one innocent person

was dead, a toddler suffered life-threatening injuries, and two others had been

stabbed or sliced to varying degrees.

The trial for the Easter events was conducted before the Court without a jury.

There was little contention over what happened and whether Mr. Calhoun had

engaged in the brutality. But the parties hotly contested what spurred Mr. Calhoun

to act as he did that night. As submitted to the Court for verdict, the questions were:

(1) which offense fit the injury to each victim; and, (2) whether Mr. Calhoun could

be held criminally responsible for them. The Court entered a verdict of guilty but

mentally ill as to each conviction attained and later sentenced Mr. Calhoun

accordingly.

His convictions and sentence having been affirmed on direct appeal,

Mr. Calhoun has returned here seeking postconviction relief under this Court’s

Criminal Rule 61. According to Mr. Calhoun, his trial counsel was ineffective in

her presentation of his insanity defense. She was not. And, for the reasons now

explained, Mr. Calhoun is due no postconviction relief.

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 I. FACTUAL AND PROCEDURAL BACKGROUND

A. THE TRAGEDY ON EASTER SUNDAY 2018.

Mr. Calhoun was staying temporarily at his mother Wanda Berry’s home on

April 1, 2018.1 Living there too was Connie Saunders and her eighteen-month-old

child, who was Mr. Calhoun’s niece.2 On that Easter Sunday, Ms. Saunders had

invited a friend, Andrew Moore, over to the house as well.3

After the three had been out earlier visiting family and friends, Mr. Moore and

the baby were watching movies with Ms. Saunders in her bedroom at the Berry

home.4 Mr. Calhoun came into the bedroom unexpectedly and told Ms. Saunders

that he wanted to keep her child safe by giving Ms. Saunders a knife for protection.5

He then left the bedroom to look for a knife.6 Fearful of Mr. Calhoun’s strange

behavior, Mr. Moore closed and locked the bedroom door behind him.7

Mr. Calhoun came back with a knife in hand.8 Realizing the door was locked,

Mr. Calhoun started to break it open while Mr. Moore tried to barricade it.9 Upon

1
D.I. 49 (“Sept. 9, 2019 Trial Tr.”) at 28-30.
2
Id. at 26-28, 40.
3
Id. at 30-32.
4
Id. at 32.
5
Id. at 33.
6
Id. at 34.
7
Id.
8
Id. at 35.
9
Id.

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gaining partial entry, Mr. Calhoun offered to give Ms. Saunders the knife. She told

him to leave it in the hallway.10 Mr. Calhoun responded that Ms. Saunders was

“alright,” but that Mr. Moore had to die.11 He then broke the rest of the way in and

stabbed Mr. Moore repeatedly.12 At some point, Mr. Calhoun also stabbed

Ms. Saunders and the baby.13 Ms. Saunders escaped with her daughter through a

back door and flagged down a car that took them to a hospital.14

Ms. Berry had been outside of the house when the violence began but ran

inside when she heard yelling from the bedroom.15 She saw what was happening

and implored Mr. Calhoun to stop.16 She, too, was stabbed in that exchange.17

Eventually, Mr. Moore was able to wrestle the knife away from Mr. Calhoun.18

The police arrived soon thereafter, finding Ms. Berry on the front porch,

Mr. Moore near the doorway, and Mr. Calhoun in the living room.19 According to

10
Id. at 35-36.
11
Id.
12
Id. at 36-37.
13
Id.
14
Id. at 37-38.
15
Id. at 126.
16
Id. at 127.
17
Id. at 128.
18
Id. at 129. Mr. Moore later died from his injuries.
19
Id. at 138.

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police testimony, Mr. Calhoun appeared to be intoxicated and out of sorts.20

Among other things, Mr. Calhoun told police that there were people “teleporting”

around the room.21

Mr. Calhoun was taken to a local hospital to receive treatment for an injury to

his hand.22 At the hospital, Mr. Calhoun said that everyone was dead because PCP

was draining out of his body,23 that he killed his own family for PCP, and that he

deserved to die.24

B. THE TRIAL TESTIMONY KEY TO THE PRESENT CHALLENGE

During Mr. Calhoun’s six-day bench trial,25 the State presented numerous

witnesses, including police officers, Ms. Saunders, Ms. Berry, and others. The

defense focused on Mr. Calhoun’s claims of mental illness, particularly his

increasingly erratic behavior just before Easter. In short, the parties disagreed on

what part Mr. Calhoun’s regular PCP use and purported mental illness played in his

crimes.

20
Id. at 71, 99, 140.
21
Id. at 106.
22
Id. at 99.
23
“PCP” is short for phencyclidine. Blood tests revealed that Mr. Calhoun did have some amount
of that drug remaining in his system at the time of the crimes. D.I. 53 (“Sept. 10, 2019 Trial Tr.”)
at 153-77.
24
Sept. 9, 2019 Trial Tr. at 102.
25
Mr. Calhoun’s trial took place in September 2019, after he had rejected a plea offer and waived
his right to a jury trial. D.I. 28, 30-31. Mr. Calhoun stipulated that he was a person prohibited and
pursued the affirmative defense to all charges of not guilty by reason of insanity. D.I. 38.

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 The Court need not further reconstitute the entirety of the detailed factual

background and trial proceedings here; the parties and Court are well-acquainted

with the record to this point.26 That said, a brief recounting of three witnesses key

to the present claim is helpful.

Ms. Berry explained that her son had been living with his girlfriend, Brittney

Hannah, at the time of the incident.27 According to Ms. Berry, Mr. Calhoun had

been acting strangely in the days leading up to Easter, exhibiting paranoia and

making statements about how he believed Brittany was trying to kill him.28

Ms. Berry decided to let him stay at her home so that she could try to get him medical

help.29

Forensic and Clinical Psychologist Robert Thompson was called as the

defense expert witness in support of Mr. Calhoun’s Not Guilty by Reason of Insanity

(“NGRI”) defense.30 Dr. Thompson evaluated Mr. Calhoun following the crimes

26
See, e.g., Calhoun v. State, 2020 WL 5951370, at *1-3 (Del. Oct. 7, 2020) (direct appeal
decision recounting the crimes and trial); First Amended Motion for Relief and Consolidated Brief
In Support (“Am. Mot. for Postconviction Relief”), at 5-33 (D.I. 78) (same); State’s Rule 61 Resp.,
at 1-8, 13-38 (D.I. 84) (same).
27
Sept. 9, 2019 Trial Tr. at 118-119.
28
Id. at 120-121.
29
Id.
30
Under Section 401(a) of Title 11: “In any prosecution for an offense, it is an affirmative defense
that, at the time of the conduct charged, as a result of mental illness or serious mental disorder, the
accused lacked substantial capacity to appreciate the wrongfulness of the accused’s conduct. If
the defendant prevails in establishing the affirmative defense provided in this subsection, the trier
of fact shall return a verdict of ‘not guilty by reason of insanity.’” DEL. CODE ANN. tit. 11, § 401(a)
(2017).

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and prepared an extensive report on his competency and mental state when the

crimes occurred.31 Per Dr. Thompson’s report, Mr. Calhoun was diagnosed with

Attention Deficit Hyperactivity Disorder as a child and had taken medication for that

disorder, but he hadn’t received mental health care as an adult until his

incarceration.32 Dr. Thompson diagnosed Mr. Calhoun with, inter alia, unspecified

schizophrenia spectrum and other psychotic disorders.33

Dr. Thompson’s report detailed Mr. Calhoun’s version of events leading up

to the stabbings.34 The report recounted Mr. Calhoun’s psychotic incident with

Brittany Hannah at a bus stop the day before, when Mr. Calhoun believed his life

was in danger.35 Additionally, the report included Dr. Thompson’s interview with

31
D.I. 44 (“Sept. 16, 2019 Trial Tr.”) at 4; Am. Mot. for Postconviction Relief Appendix (“PCR
Appendix”) at A-001 (“Thompson Report”) (D.I. 80).
32
Thompson Report at 3.
33
Id. at 6.
34
Id. at 10-13.
35
Id. at 11-12:
On Saturday, March 31st, Mr. Calhoun started experiencing increased “paranoia.”
He came to feel that Brittany was trying to have him “set up” and “murdered.” He
recalled having that experience one or two times previously, although it had been
relatively short-lived. He perceived Brittany to be “acting sluggish.” He felt that
“something’s not right.” He indicated that the two of them got on a bus that day.
He recalled seeing the driver of the bus another day, and the two of them had
discussed truck driving. During the trip, the driver missed a stop; he had to go off-
route due to construction. Mr. Calhoun “felt uneasy,” as if something bad was
“going to happen.” To him, “nothing seemed right.” He saw a young man at a bus
stop. He had the feeling that he was being “set up” in some way. He developed
ideas of reference, believing that ladies where were standing on a corner were
looking at him. He remembered feeling “real weird.” As his feelings increased, he
began to feel panicky. He felt the urge to get off the bus immediately. Britany
argued with him, tried to talk him into not getting off the bus. But he got off
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Ms. Berry, who also recalled the bus incident.36

During his trial testimony, Dr. Thompson opined that Mr. Calhoun lacked the

substantial capacity to appreciate the wrongfulness of his conduct at the time of the

crimes.37 He agreed, too, that Mr. Calhoun suffered from a mental illness that

sufficiently disturbed his thinking, feeling, or behavior, or that left him with

insufficient willpower to choose whether to commit or refrain from committing the

crimes.38

Dr. Thompson explained that Mr. Calhoun has a history of drug use and

frequently used PCP and marijuana.39 Yet, the psychologist opined that Mr. Calhoun

was not voluntarily under the influence of PCP or suffering PCP-induced psychosis

when the crimes occurred.40 Dr. Thompson based this opinion on what he viewed

as insufficient evidence of Mr. Calhoun’s most recent PCP use41 and also,

anyway, leaving her on the bus alone at Rodney Square. He started to walk to his
apartment. While he was walking, he saw police officers and “tried to get a ride to
the hospital,” but they said no. They told him they were unable to provide a ride to
the hospital.
36
Id. at 13 (“[Ms. Berry] indicated that, on Saturday, something happened while Mr. Calhoun
and his girlfriend, Brittany Hannah, were riding a bus. Apparently, Mr. Calhoun was ‘acting
strange’ on the bus. This information was reported by Mr. Calhoun’s girlfriend to Ms. Berry.”)
37
Sept. 16, 2019 Trial Tr. at 63-65.
38
Id.
39
Id. at 30-32.
40
Id. at 33-35.
41
Id. at 65. At trial, the State contended that Mr. Calhoun used PCP sometime just prior to the
incident. Sept. 9, 2019 Trial Tr. at 9-11. But Mr. Calhoun told Dr. Thompson that he last used
PCP five days before the incident occurred. Thompson Report at 11.

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importantly, because Mr. Calhoun continued to exude psychotic disorder behaviors

while imprisoned—well after his PCP usage had stopped.42 Dr. Thompson’s

conclusions regarding Mr. Calhoun’s capacity to appreciate the wrongfulness of his

acts were unaffected by Mr. Calhoun’s immediate remorseful statements to police

officers at the hospital. Because, said Dr. Thompson, a psychotic person could still

express remorse.43

On cross-examination, the State asked Dr. Thompson about not having

received certain police reports prior to authoring his pretrial report.44 Dr. Thompson

confirmed that he was aware of Mr. Calhoun’s statements to police, but that he “still

believe[d] there was sufficient information to form an opinion.”45 On redirect,

Dr. Thompson confirmed that he knew about Mr. Calhoun’s various statements to

others, that he had received copies of law enforcement’s recorded interviews with

Ms. Saunders and Ms. Berry after he completed his report but prior to trial, and that

he had reviewed witness statements before last meeting with Mr. Calhoun and

testifying at trial.46

The State called Clinical and Forensic Psychiatrist Stephen Mechanick as its

42
Sept. 16, 2019 Trial Tr. at 96-98; D.I. 45 (“Sept. 17, 2019 Trial Tr.”) at 227.
43
See id. at 221.
44
Sept. 16, 2019 Trial Tr. at 81-83.
45
Id. at 81.
46
Id. at 137-139, 142-144, 150-154, 162-164, 179-180.

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rebuttal expert witness. According to Dr. Mechanick, there was insufficient

evidence that Mr. Calhoun suffered from a mental disorder that could cause

psychotic symptoms.47 Instead, Dr. Mechanick opined, Mr. Calhoun’s behavior at

the time of the crimes was explained by PCP intoxication.48 Dr. Mechanick posited

that Mr. Calhoun was under the influence of PCP when the incident occurred and

explained that side effects of PCP use can include paranoia and aggression.49

Dr. Mechanick also opined that Mr. Calhoun showed an appreciation for the

wrongfulness of his actions based, in part, on his remorseful statements after the

incident.50

C. THE VERDICT AND APPEAL

On September 20, 2019, the Court returned its verdict. Mr. Calhoun was

found guilty but mentally ill (“GBMI”)51 of first-degree murder (Mr. Moore),

attempted first-degree murder (the child), first-degree assault (Ms. Berry—as an

47
Sept. 17, 2019 Trial Tr. at 16, 26-28.
48
Id. at 37-40.
49
Id.
50
Id at 54-55.
51
Under DEL. CODE ANN. tit. 11, § 401(b) (2017),
Where the trier of fact determines that, at the time of the conduct charged, a
defendant suffered from a mental illness or serious mental disorder which
substantially disturbed such person’s thinking, feeling or behavior and/or that such
mental illness or serious mental disorder left such person with insufficient will
power to choose whether the person would do the act or refrain from doing it,
although physically capable, the trier of fact shall return a verdict of “guilty, but
mentally ill.”

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included offense of attempted first-degree murder), first-degree assault

(Ms. Saunders), and the related weapons counts.52 Mr. Calhoun was later sentenced

cumulatively to two life terms plus 20 years and a 3-year imprisonment term

suspended for decreasing levels of supervision.53

Mr. Calhoun appealed his convictions and sentence.54 After his appellate

counsel moved to withdraw her representation pursuant to Supreme Court Rule

26(c),55 Mr. Calhoun exercised his right to raise certain points for the Supreme

Court’s consideration.56 The Delaware Supreme Court affirmed the Court’s

judgment.57

Mr. Calhoun, invoking Superior Court Criminal Rule 61, then filed pro se

motions for postconviction relief and appointment of counsel.58 The Court

appointed counsel who is prosecuting Mr. Calhoun’s present amended

postconviction motion.59

52
D.I. 40.
53
D.I. 43. He will serve that sentence under the conditions provided in 11 Del. C. § 408(b) and
(c). Id.
54
Calhoun v. State, 2020 WL 5951370 (Del. Oct. 7, 2020).
55
Id. at *3 (citing Del. Supr. Ct. R. 26(c) (“If the trial attorney, after a conscientious examination
of the record and the law, concludes that an appeal is wholly without merit, the attorney may file
a motion to withdraw.”)).
56
Id.
57
Id. at *7 (“This Court has reviewed the record carefully and has concluded that Calhoun’s
appeal is wholly without merit and devoid of any arguably appealable issue.”).
58
D.I. 57, 58.
59
D.I. 61; D.I. 78.

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 II. THE POSTCONVICTION MOTION

A. MR. CALHOUN’S MOTION CAN BE CONSIDERED ON ITS MERITS.

Delaware courts must consider Criminal Rule 61’s procedural requirements

before addressing any substantive issues.60 The Rule 61 procedural bars are

“timeliness, repetitiveness, procedural default, and former adjudication.”61

Less than a year after his judgment of conviction became final, Mr. Calhoun

timely filed his Rule 61 motion.62 This is his first postconviction motion, so it is not

repetitive. As Mr. Calhoun’s only claim for relief alleges ineffective assistance of

counsel—which, except in the rarest of circumstances, cannot be raised on direct

appeal—he is neither procedurally barred from raising it in this collateral

proceeding, nor has it been formerly adjudicated.63

Accordingly, the Court will address the merits of Mr. Calhoun’s

postconviction claim.

B. MR. CALHOUN’S POSTCONVICTION CLAIM OF INEFFECTIVENESS

Mr. Calhoun contends that the following “failure[s] by trial counsel” in

executing his insanity defense constitute ineffective assistance violative of the Sixth

60
Maxion v. State, 686 A.2d 148, 150 (Del. 1996); State v. Jones, 2002 WL 31028584, at *2
(Del. Super. Ct. Sept. 10, 2002).
61
State v. Stanford, 2017 WL 2484588, at *2 (Del. Super. Ct. June 7, 2017) (citations omitted).
62
See Super Ct. Crim. R. 61(i)(1) and (m)(2).
63
Stanford, 2017 WL 2484588, at *3.

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Amendment:

(1) failure to elicit testimony supportive of Mr. Calhoun’s insanity
defense from state’s witness Wanda Berry, and failure to ask
Dr. Thompson to incorporate [Ms.] Berry’s statements to police
into his opinion, report, and testimony regarding Mr. Calhoun’s
mental state;64

(2) failure to call Brittney Hannah as a defense witness, and failure
to ask Dr. Thompson to incorporate [Ms.] Hannah’s statement to
police into his report and opinion regarding petitioner’s mental
state;65

(3) failure to present a toxicology expert to disprove Mr. Calhoun’s
statement that he used “Wet” on the day of the stabbing;66

(4) failure to provide DOC records supportive of Mr. Calhoun’s
insanity defense to Dr. Thompson before trial;67 and,

(5) failure to provide Dr. Thompson with any police reports related
to Mr. Calhoun’s case.68

In addition to pointing out what he deems these inexcusable individual defects in his

trial defense, Mr. Calhoun says that the cumulative effect of two or more of the

above-described alleged deficiencies should warrant relief.69

64
Am. Mot. for Postconviction Relief at 36-47.
65
Id. at 47-55.
66
Id. at 55-62.
67
Id. at 62-68.
68
Id. at 68-73.
69
Id. at 73-75. Mr. Calhoun also includes a cursory prayer for discovery and an evidentiary
hearing. Id. at 76.

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 III. APPLICABLE LEGAL STANDARDS

A movant who claims ineffective assistance of counsel must demonstrate that:

(a) his defense counsel’s representation fell below an objective standard of

reasonableness, and (b) there is a reasonable probability that but for counsel’s errors,

the result of the proceeding would have been different.70

There is a strong presumption that a criminal defense counsel’s representation

was reasonable.71 When assessing the reasonableness of counsel’s conduct, the

Court considers “not what is possible or what is prudent or appropriate, but only

what is constitutionally compelled.”72 The “[b]enchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

produced a just result.”73

Too, one claiming ineffective assistance “must make specific allegations of

how defense counsel’s conduct actually prejudiced the proceedings, rather than mere

allegations of ineffectiveness.”74

70
Strickland v. Washington, 466 U.S. 668, 694 (1984); see also Alston v. State, 2015 WL
5297709, at *2-3 (Del. Sept. 4, 2015).
71
Green v. State, 238 A.3d 160, 174 (Del. 2020) (quoting Strickland, 466 U.S. at 689)).
72
Id. (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).
73
Cooke v. State, 977 A.2d 803, 840 (Del. 2009) (internal quotations omitted).
74
Alston, 2015 WL 5297709, at *3 (citing Wright v. State, 671 A.2d 1353, 1356 (Del. 1996));
Monroe v. State, 2015 WL 1407856, at *5 (Del. Mar. 25, 2015) (citing Dawson v. State, 673 A.2d
1186, 1196 (Del. 1996)).

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 Last, a movant must demonstrate both deficient attorney performance and

resulting prejudice to succeed on his ineffective assistance of counsel claim.75

Failure to do so on either will doom that claim and obviate any need for the Court to

address the other.

IV. DISCUSSION

TRIAL COUNSEL’S PERFORMANCE WAS NOT OBJECTIVELY UNREASONABLE
NOR IS THERE A REASONABLE PROBABILITY OF A DIFFERENT VERDICT

A. TRIAL COUNSEL’S TACK ON CROSS-EXAMINATION OF
MR. CALHOUN’S MOTHER WAS REASONABLE TRIAL STRATEGY.

Mr. Calhoun first contends that trial counsel should have cross-examined

Ms. Berry in greater detail.76 Specifically, Mr. Calhoun says that trial counsel should

have asked Ms. Berry more about Mr. Calhoun’s mental state leading up to the

incident.77 And Mr. Calhoun argues that Ms. Berry’s knowledge of an incident that

occurred some years earlier should have been inquired into.78 According to

Mr. Calhoun, cross-examination about these prior events would have further

supported his NGRI defense.79

75
Strickland, 466 U.S. at 694; Ploof v. State, 75 A.3d 811, 825 (Del. 2013) (“Strickland is a two-
pronged test, and there is no need to examine whether an attorney performed deficiently if the
deficiency did not prejudice the defendant.” (citation omitted)); State v. Hamby, 2005 WL 914462,
at *2 (Del. Super. Ct. Mar. 14, 2005).
76
Am. Mot. for Postconviction Relief at 41-43.
77
Id.
78
Id. at 37-38, 41-42.
79
Id. at 46-47.

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 Mr. Calhoun bears the burden of showing that his counsel’s conduct fell below

an objective standard of reasonableness, “i.e., that no reasonable lawyer would have

conducted the defense as his lawyer did.”80 “A fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.” 81

In her post-trial affidavit, trial counsel explained that Ms. Berry informed her

“[Mr. Calhoun] had been hospitalized previously for PCP drug-induced psychosis

because of his heavy and extended use (15+ years) of PCP.”82 Ms. Berry also told

trial counsel that Mr. Calhoun “had been physically violent . . . following a diagnosis

of PCP drug-induced psychosis,” and that she “had been actively trying to get

[Mr. Calhoun] into an in-patient drug rehabilitation program.”83

Mr. Calhoun has not shown that trial counsel’s examination of Ms. Berry was

objectively unreasonable. A criminal defense attorney is given wide latitude in

making strategic trial decisions; this extends to the conduct of cross-examination.84

The questions to be asked and how a given cross-examination is conducted are

80
Green, 238 A.3d at 174 (citing Burger, 483 U.S. at 791).
81
Taylor v. State, 32 A.3d 374, 381 (Del. 2011) (quoting Strickland, 466 U.S. at 689).
82
Affidavit in Response to Ineffective Assistance of Counsel Motion (“Trial Counsel Affidavit”)
¶ 2 (D.I. 83).
83
Id.
84
State v. Powell, 2016 WL 3023740, at *25 (Del. Super. Ct. May 24, 2016).

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tactical decisions.85 And an attorney’s strategic or tactical choices made after

thorough investigation of the relevant law and facts are virtually unchallengeable. 86

Still, the Court must “keep in mind . . . that although strategy satisfies the

Strickland requirements, ‘[t]he relevant question is not whether counsel’s choices

were strategic, but whether they were reasonable.’”87

At trial, the State attempted to pin Mr. Calhoun’s actions on voluntary

intoxication of PCP. Were the State successful, Mr. Calhoun’s NGRI defense—

indeed any mental health-based defense—was in peril.88 Trial counsel was rightly

concerned with just how much should be explored regarding Mr. Calhoun’s PCP use

and history. His mother knew of his prior episodes and diagnosis for PCP-induced

psychosis. She knew of physical violence toward her that had been tied to his PCP

use. And trial counsel knew of her own expert’s diagnoses that included, among

other things, “History of PCP-Induced Psychotic Disorder; PCP Use Disorder,

severe, in remission, in a controlled environment.”89 So trial counsel made a tactical

85
Outten v. State, 720 A.2d 547, 557 (Del. 1998) (“[H]ow to cross-examine those [witnesses]
who are called are tactical decisions.”).
86
Green, 238 A.3d at 174.
87
Id. (quoting Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000)).
88
See DEL. CODE ANN. tit. 11, § 401(c) (2017) (“It shall not be a defense under this section if the
alleged insanity or mental illness was proximately caused by the voluntary ingestion, inhalation or
injection of intoxicating liquor, any drug or other mentally debilitating substance, or any
combination thereof.”).
89
Thompson Report at 6.

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decision not to cross-examine Ms. Berry in further detail because Ms. Berry’s

extensive knowledge of Mr. Calhoun’s PCP abuse may have led to more damaging

testimony itself or opened her to redirect examination that counsel sought to avoid.

That was, no doubt, reasonable trial strategy.

B. FAILURE TO CALL MR. CALHOUN’S GIRLFRIEND OR
ENGAGE A TOXICOLOGIST WAS INFORMED AND REASONABLE.

Next, Mr. Calhoun argues that trial counsel’s failure to call two witnesses

constitutes ineffective assistance of counsel.90 First, Mr. Calhoun says that trial

counsel should have presented Brittney Hannah as a defense witness.91 According

to Mr. Calhoun, Brittney Hannah would have testified about his “delusional state

leading up to the stabbing” and how his behavior “was not consistent with

intoxication but was something altogether different.”92 Mr. Calhoun says

Ms. Hannah also could have testified about a 2016 incident that, in his view,

demonstrated a prolonged mental illness unrelated to PCP.93

Again, “[t]he decision of a trial attorney to call or not to call potential

witnesses is a part of trial strategy.”94 Per trial counsel’s affidavit, Ms. Hannah’s

90
Am. Mot. for Postconviction Relief at 47-55, 55-62.
91
Id. at 47-55.
92
Id. at 50, 51.
93
Id. at 53.
94
Sierra v. State, 242 A.3d 563, 573-74 (Del. 2020) (quoting Baynum v. State, 1990 WL
1098720, at *1 (Del. Super. Ct. June 8, 1990)).

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testimony might have been less favorable to Mr. Calhoun than current counsel

suggests.95 Ms. Hannah was “aware that he had been a long-time and heavy PCP

user who had been hospitalized previously with PCP-induced psychosis.”96 Trial

counsel’s investigation revealed that Ms. Hannah would have testified about

Mr. Calhoun’s “bad PCP trips in the past” and that Mr. Calhoun’s “behavior was

becoming more concerning with each subsequent PCP use.”97 Such testimony

would have been inapposite of trial counsel’s defense strategy, so the decision not

to present it was reasonable.98

Second, Mr. Calhoun insists trial counsel’s failure to engage and call a defense

toxicologist was a misstep.99 Mr. Calhoun reports his now-employed toxicologist

reviewed the State lab’s litigation packet and concluded that the lab results produced

were, in his opinion, “inconsistent with Mr. Calhoun’s statement[s]” about his pre-

crime drug usage.100 In Mr. Calhoun’s view, this would have proved that

“[Mr. Calhoun’s] actions were related to mental illness and were not proximately

95
Trial Counsel Affidavit ¶ 4.
96
Id.
97
Id.
98
Outten, 720 A.2d at 557 (“Whether to call a witness . . . [is a] tactical decision.”); Sierra, 242
A.3d at 574 (“The decision not to call a witness who defense counsel believes . . . will not help
establish a viable defense is not objectively unreasonable.”).
99
Am. Mot. for Postconviction Relief at 55-62.
100
Id. at 57.

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caused by drug use.”101 Says Mr. Calhoun, trial counsel’s failure to further

investigate whether his post-crime comments about his drug use were supported by

additional toxicological evidence was unreasonable.102

Not so. Trial counsel had familiarized herself fully with the State’s toxicology

evidence and meant to exploit it and adduce her defense-favorable information via

cross-examination. In turn, she decided to “not call a[nother] toxicologist as a

witness because such a witness would [also had to] have described how all the

symptoms exhibited by Defendant at or near the time of his arrest were entirely

consistent with someone who was using PCP or someone who had been using PCP

over the course of 15+ years.”103 That is was a rational tactical decision. And trial

counsel’s preparation and trial conduct can’t be deemed inadequate “merely because

the defendant has now secured the testimony of a more favorable . . . expert.”104

What’s more, given the GBMI verdict, it is clear that the Court had discounted

the effect of any possible PCP use and its causal effect on Mr. Calhoun’s behavior

at the time of the crimes.105 In other words, there is no reasonable probability that

101
Id.
102
Id.
103
Trial Counsel Affidavit ¶ 5 (emphasis in original).
104
Taylor, 32 A.3d at 384 (quoting State v. Taylor, 2010 WL 3511272, at *20 (Del. Super. Ct.
Aug. 6, 2010)). As well, given what the now-acquired expert has opined, the information added
is only slightly more favorable—i.e., it is, at best, some further confirmation that Mr. Calhoun
more likely had not used “Wet” just before the Easter night stabbings.
105
See DEL. CODE ANN. tit. 11, § 401(c) (2017) (“It shall not be a defense under this section if the
alleged insanity or mental illness was proximately caused by the voluntary ingestion, inhalation or
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the Court’s verdict would have differed with the addition of this toxicology expert.

C. TRIAL COUNSEL’S PREPARATION OF DR. THOMPSON WAS NOT DEFICIENT.

Finally, Mr. Calhoun calls out trial counsel’s preparation of Dr. Thompson as

wanting. In support, Mr. Calhoun says that trial counsel failed to: (i) insist that

Dr. Thompson incorporate Ms. Berry’s statements to police into his report and

testimony;106 (ii) insist that Dr. Thompson incorporate Brittney Hannah’s statements

into his report and testimony;107 (iii) provide Dr. Thompson with more extensive

DOC records;108 and, (iv) provide Dr. Thompson with certain police reports.109

Contrary to Mr. Calhoun’s contentions, trial counsel’s preparation of

Dr. Thompson was not deficient or unreasonable. True, Dr. Thompson never

received the full set of police reports, or the statements by Ms. Berry and Brittney

Hannah until a month before trial. But Dr. Thompson was given multiple

opportunities—both before and during trial—to incorporate Ms. Berry and

injection of intoxicating liquor, any drug or other mentally debilitating substance, or any
combination thereof.”).
106
Am. Mot. for Postconviction Relief at 43-45 (identifying omitted statements by Ms. Berry
about: (1) Mr. Calhoun’s belief that Brittney Hannah was a threat to him; (2) Mr. Calhoun’s fear
that his family was at risk; (3) Mr. Calhoun’s purported hallucinations after the stabbing; and,
(4) Mr. Calhoun saying to Ms. Berry just after the stabbing, “Mom, we okay now. We - we gonna
be a’right. We gonna be in heaven. We gonna be a’right.”).
107
Id. at 52-54 (identifying omitted statements by Brittney Hannah about: (1) Mr. Calhoun’s
paranoia about his own safety; (2) Mr. Calhoun’s fear of Brittney Hannah’s incarcerated ex-
boyfriend; (3) the bus incident; and, (4) Mr. Calhoun’s physical state the morning before the
stabbing occurred).
108
Id. at 62-68.
109
Id. at 68-73.

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Ms. Hannah’s statements into his report, opinion, and, most importantly, his

testimony.

Dr. Thompson told the Court at trial that he did rely on summaries of witness

statements when drafting his report. And many specific witness statements were

included in the report—while others were and are entirely duplicative of what

Dr. Thompson already reported, testified to, or the Court received via other

witnesses and documents. Dr. Thompson himself disclosed—then and now—that

the diagnoses and conclusions in his expert report would not have changed even if

the statements in question were provided.110

Lastly, trial counsel explained that “Dr. Thompson was provided with DOC

records that were current as of the time he authored his report.”111 Review of the

records generated thereafter does little but buttress the conclusions already

presented—that Mr. Calhoun’s psychotic episode was less likely the result of PCP

use. So, Mr. Calhoun’s assertions about the inadequacy of Dr. Thompson’s

preparation by counsel are unpersuasive.

D. MR. CALHOUN HAS NOT SHOWN THE REQUIRED PREJUDICE HERE.

“It is not the role of the Court to determine what the best lawyers would have

done or even what most good lawyers would have done. Instead, the Court must

110
Sept. 26, 2019 Trial Tr. at 141-144.
111
Trial Counsel Affidavit ¶ 6.

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determine whether trial counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”112

By this measure, Mr. Calhoun has failed to satisfy Strickland’s counsel-deficiency

showing. And while that itself is enough to doom Mr. Calhoun’s ineffective

assistance claim, he also cannot satisfy Strickland’s prejudice requirement.

Even if any or all the above-listed actions by trial counsel did fall below the

Strickland line of objectively reasonable conduct—they do not—Mr. Calhoun still

would not meet the second requirement of his ineffective counsel claim. He must

show a reasonable probability that trial counsel’s conduct caused a different negative

outcome than would otherwise have been reached at trial.113 “[N]ot every error that

conceivably could have influenced the outcome undermines the reliability of the

result of the proceeding.”114 Instead, the postconviction movant “must make specific

allegations of actual prejudice and substantiate them.”115 Under Strickland and its

progeny, “if the court finds that there is no possibility of prejudice even if a

defendant’s allegations regarding counsel’s representation were true, the court may

dispose of the claim on this basis alone.”116

112
State v. Peters, 283 A.3d 668, 686 (Del. Super. Ct. 2022) (cleaned up), aff’d, 299 A.3d 1 (Del.
2023); Hoskins v. State, 102 A.3d 724, 730 (Del. 2014).
113
Strickland, 466 U.S. at 694; Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
114
Sierra, 242 A.3d at 572 (quoting Strickland, 466 U.S. at 693).
115
Id. (quoting Outten, 720 A.2d at 552).
116
State v. Manley, 2014 WL 2621317, at *7 (Del. Super. Ct. May 29, 2014).

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 Here, Mr. Calhoun cannot demonstrate the requisite prejudice from what he’s

labeled as lacking performance by trial counsel. Simply put, here Mr. Calhoun has

not shown “there is a reasonable probability that, but for counsel’s [supposed]

unprofessional errors, the result of [his trial] would have been different.”117

Recall, that Mr. Calhoun sought an NGRI verdict. That meant he had the

burden of “establishing the affirmative defense” “that, at the time of the conduct

charged, as a result of mental illness or serious mental disorder, [he] lacked

substantial capacity to appreciate the wrongfulness of [his] conduct.”118 At bottom,

his key contention—and that of Dr. Thompson’s declaration—is that the now-added

information “would have substantially enhanced [Dr. Thompson’s] opinion.”119

This Court has previously observed that “[t]he law recognizes a distinction

between ‘insanity’ and ‘mental illness.’”120 And the Delaware Supreme Court has

explained the role of mental illness in assessing criminal culpability:

Insanity is a legal concept that comprises a narrow class of
symptoms; mental illness is a medical concept that embraces a
wide range of diseases. Thus, while both mild neuroses and
debilitating psychoses may be included under the heading of
mental illness, legal insanity exists only if the defendant’s illness
undermines his culpability to such an extent that punishment
becomes inappropriate. In a psychiatrist’s eyes, a person may be

117
Starling v. State, 130 A.3d 316, 325 (Del. 2015) (quoting Strickland, 466 U.S. at 694).
118
DEL. CODE ANN. tit. 11, § 401(c) (2017).
119
PCR Appendix at A-028.
120
State v. Wallace, 2007 WL 545563, at 11 (Del. Super. Ct. Jan. 26, 2007).

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 ill in varying degrees, but in the law’s eyes, he is either sane or
insane, either blameworthy or not blameworthy.121

As this Court has instructed in such cases:
The crux of the insanity test is whether a mental illness or defect
has “deprive[d] the defendant of the ability to know that he is
committing a wrongful act.” The use of terms like “capacity”
and “ability” suggest that the question is not whether the
defendant appreciated at the moment he committed a criminal act
that the act was wrong, but rather whether he had the “capacity”
or “ability” to do so if he had reflected on his conduct
immediately prior to acting. In other words, the fact that
someone acts intentionally but without thinking of the
wrongfulness of his conduct, or acts out of uncontrolled impulse
without a second thought, does not necessarily mean that the
person “lacked the substantial capacity to appreciate the
wrongfulness of [his] conduct.”122

And no doubt, whether one lacked the substantial capacity to appreciate the

wrongfulness of his conduct is a finding of fact the defendant must attain.123 It is

against this legal backdrop that the Court evaluated Mr. Calhoun’s conduct at the

time he killed Andrew Moore and stabbed and sliced three others.

The Court found Mr. Calhoun was guilty but mentally ill.124 So,

121
Sanders v. State, 585 A.2d 117, 123 (Del. 1990).
122
Wallace, 2007 WL 545563, at *11 (internal citations omitted).
123
See DEL. CODE ANN. tit. 11, § 401(a) (2017) (“If the defendant prevails in establishing the
affirmative defense provided in this subsection, the trier of fact shall return a verdict of ‘not guilty
by reason of insanity.’”).
124
That is the Court determined “at the time of the conduct charged, [Mr. Calhoun] suffered from
a mental illness or serious mental disorder which substantially disturbed [his] thinking, feeling or
behavior and/or that such mental illness or serious mental disorder left [him] with insufficient will
power to choose whether [he] would do the act or refrain from doing it.” Id. at § 401(b). See
Aizupitis v. State, 699 A.2d 1092, 1095-98 (Del. 1997) (explaining GBMI under Delaware law).

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Mr. Calhoun’s only available prejudice argument is that trial counsel’s alleged

deficiencies caused Mr. Calhoun to be found guilty but mentally ill instead of not

guilty by reason of insanity.

As his main support, Mr. Calhoun relies on Dr. Thompson’s recent

declaration. There, Dr. Thompson says that if he had been provided with and

included greater detail of certain witness statements or other evidence, it “would

have supported and strengthened [his] conclusion that Mr. Calhoun was not guilty

by reason of insanity.”125 But that’s it. Even if Dr. Thompson had been provided

with all witness statements, police reports, and records, his final diagnoses and

conclusion would remain the same. And Mr. Calhoun’s suggestion that had

Dr. Thompson given his now-incrementally-enhanced opinion at trial he might have

been found NGRI comes nowhere close to the reasonable probability Strickland

requires.126

E. THE CUMULATIVE PREJUDICE CLAIM FAILS.

Lastly, Mr. Calhoun contends that the effect of trial counsel’s purported errors

so undermined the verdict that his constitutional right to due process was denied.127

125
PCR Appendix at A-021-22.
126
Harrington v. Richter, 562 U.S. 86, 112 (2011) (“The likelihood of a different result must be
substantial, not just conceivable.” (citing Strickland, 466 U.S. at 693)); Starling, 130 A.3d at 325
(same); Baynum v. State, 211 A.3d 1075, 1084 (Del. 2019) (Strickland-level prejudice requires
that there is “a substantial likelihood—i.e., a meaningful chance—that a different outcome would
have occurred but for counsel’s deficient performance.”).
127
Am. Mot. for Postconviction Relief at 73-75.

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But, this cumulative prejudice argument gains no more traction than the others did

severally. More directly, because Mr. Calhoun has failed on each count to prove

that his trial counsel was Strickland-level deficient128 and that, but for trial counsel’s

performance, the outcome of his trial would have been different, he fails in the

aggregate.

Our Supreme Court addressed a similar cumulative effect argument in

Hoskins v. State.129 There, the high court engaged a plain error standard of review

and looked for “material defects which are apparent on the face of the record; which

are basic, serious and fundamental in their character, and which clearly deprive an

accused of a substantial right, or which clearly show manifest injustice.”130 Under

this analysis, the Court noted that “none of [the postconviction movant’s] individual

claims of ineffective assistance have merit because of a failure to show prejudice,”

and, consequently, found the movant’s “claim of cumulative error [to be] without

merit.”131 As just explained, the most favorable gloss on Mr. Calhoun’s several

complaints is that Dr. Thompson’s diagnoses and opinion would have been the same

128
The Court knows that “it is important to remain cognizant that [trial counsel’s]
performance, viewed as a whole, is what matters” under Strickland.” Green, 238 A.3d at 174
(quoting Atkins v. Zenk, 667 F.3d 939, 945 (7th Cir. 2012) (emphasis in the original)). And so, the
Court has looked at the failures alleged both individually and as whole. In this particular
circumstance, they do by and large collapse into one complaint of error—presentation of almost
immeasurably diminished trial testimony from the defendant’s mental health expert.
129
102 A.3d 724 (Del. 2014).
130
Id. (citation omitted).
131
Id.

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but the support for such, in the psychologist’s view, would have been stronger. Yet,

even with this added information and Dr. Thompson’s declaration as to its effect on

his opinion, Mr. Calhoun has still failed to establish “a substantial likelihood—i.e.,

a meaningful chance”132 that this Court would have delivered an NGRI rather than a

GBMI verdict.133

F. NO NEED FOR FURTHER DISCOVERY OR AN EVIDENTIARY HEARING

The Court can’t discern that there is anything “discoverable under [the

applicable] good cause standard because [Mr. Calhoun] has shown no compelling

reason for [any further] discovery.”134 Indeed, Mr. Calhoun hasn’t identified the

subject or scope of any “discovery” needed at this point. So, his perfunctory request

for such is denied.

Finally, Mr. Calhoun requests an evidentiary hearing.135 Under Rule 61, this

132
Baynum, 211 A.3d at 1084; Starling, 130 A.3d at 325 (“The likelihood of a different result
must be substantial not just conceivable.”).
133
See Neal v. State, 80 A.3d 935, 942 (Del. 2013) (“Strickland requires more than a showing
merely that the [attorney’s] conduct could have, or might have, or it is possible that it would have
led to a different result.”) (cleaned up); Ploof, 75 A.3d at 826-28 (additional evidence or testimony
proffered on postconviction that the Court finds “may have helped [movant’s] defense
marginally,” “does not measurably alter th[e factfinder’s] analysis” of a defense claim at trial, that
“would have made only a negligible difference,” or “would not have measurably altered the
balance of the evidence” at trial, is not enough to establish prejudice under Strickland).
134
Dawson, 673 A.2d at 1197-98.
135
See DEL. SUPER. CT. CRIM. R. 61(h)(1) (providing the Court, after reviewing the record
developed in the postconviction proceedings, “shall determine whether an evidentiary hearing is
desirable.”).

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“Court has discretion to determine whether to hold an evidentiary hearing.”136 And

where it is apparent on the face of a postconviction motion, the responses thereto,

the record of prior proceedings, and any added materials, that a petitioner is not

entitled to relief, there is no need for an evidentiary hearing.137 After consideration

of the complete evidentiary record and the single legal issue raised, Mr. Calhoun’s

request for an evidentiary hearing is denied.

V. CONCLUSION

Mr. Calhoun has proved neither the deficient performance by counsel nor the

prejudice required for postconviction relief to be granted. His trial counsel made

reasonable strategic decisions about whom to call, the required preparation, and how

to cross-examine. And when considering the totality of the evidence presented at

trial and in this proceeding, Mr. Calhoun has not proven there is a substantial

likelihood that the Court would have returned an NGRI verdict but for the relatively

minute differences he now suggests should have been made in the presentation of

his insanity defense. Accordingly, Mr. Calhoun’s Rule 61 postconviction relief

motion is DENIED.

IT IS SO ORDERED.

Paul R. Wallace, Judge

136
Johnson v. State, 2015 WL 8528889, at *4 (Del. Dec. 10, 2015).
137
Id.; Hawkins v. State, 2003 WL 22957025, at *1 (Del. Dec. 10, 2003).

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