Watson v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

KHALIF WATSON, §
§ No. 418, 2022
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 1703002846A/B
STATE OF DELAWARE, §
§
Appellee. §

Submitted: February 21, 2024
Decided: April 22, 2024

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

ORDER

After consideration of the parties’ briefs and the record on appeal, it appears

to the Court that:

(1) Khalif Watson appeals from a Superior Court decision resolving his

motion for postconviction relief under Superior Court Criminal Rule 61. Watson

asserts that his trial counsel was ineffective for failing to object to the admission of

Watson’s prior felony firearm conviction as impeachment evidence, and that the

Superior Court erred by finding that Watson had not met his burden to prove

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ineffective assistance of counsel under Strickland v. Washington.1 We conclude that

Watson did not satisfy Strickland’s prejudice element, and we therefore affirm.

(2) The facts underlying Watson’s conviction are relatively

straightforward. On March 4, 2017, Officers Christopher White and Hector

Cuadrado of the Wilmington Police Department were driving northbound on

Washington Street in Wilmington when they saw Watson walking on the sidewalk.2

Officer White knew that Watson was the subject of an active capias, and the

officers—intending to conduct a pedestrian stop—pulled the police car into the lane

of oncoming traffic.

(3) The officers, who were trained to identify armed gunmen, observed

Watson as he stopped, took two steps backwards, and “bladed” his body away from

them while touching his right side—a sign that Watson was armed. Officer White

said, “Khalif, don’t run.” But Watson, who had two prior felony convictions, ran

anyway, and Officer White chased him on foot. The officers noticed that as Watson

ran, he held one arm close to his body while the other arm swung freely—another

sign that he was carrying a firearm.

1
466 U.S. 688 (1984).
2
These facts are adopted from this Court’s decision affirming Watson’s convictions on direct
appeal. Watson v. State, 303 A.3d 37, 37–44 (Del. 2023) (footnotes and record citations omitted).
That opinion contains a fuller recitation of the facts.

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 (4) Watson ran to his sister Rasheda Hinson’s house on Washington Street.

Officer White, however, caught up with Watson before he could get inside, and the

two men crashed through the front door and into the living room where they

struggled on the floor. According to Officer White, Watson then slid a silver

handgun across the floor and under the couch. Meanwhile, Officer Cuadrado entered

the home and heard Officer White say, “he just threw it under the couch.” During

the struggle, Watson’s sister, Omisha Watson (“Omisha”), came downstairs from

the second floor, entered the living room, reached under the couch, retrieved the gun,

and left the house with it. According to several defense witnesses, however, Omisha

had the gun in her hand when she came down the stairs, “stepped over” Watson and

the officers, and then ran out the door with the gun. Omisha claimed that she found

the gun in a barbeque grill behind her house a year earlier and that she had

maintained possession of it since that time.

(5) Officer White, who saw Omisha pick up the gun, chased her outside,

leaving Officer Cuadrado to handle Watson alone. Once outside, Officer White told

Omisha to drop the gun. Omisha, however, attempted to throw the gun under a

parked car, but it bounced off the car and landed in the street. Officer White

recovered the gun, which was loaded, and detained Omisha. The officers also

detained Watson after he attempted to flee again.

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 (6) On April 3, 2017, a grand jury indicted Watson and Omisha, charging

Watson with Resisting Arrest, Carrying a Concealed Deadly Weapon (“CCDW”),

Possession of a Firearm by a Person Prohibited (“PFBPP”), and Possession of

Ammunition by a Person Prohibited (“PABPP”), and charging Omisha with

Resisting Arrest and Hindering Prosecution. Omisha pleaded guilty to Resisting

Arrest and was sentenced. As part of her plea agreement, she signed a statement

agreeing that she ran from police while holding a gun discarded by Watson.

(7) At Watson’s request, his charges were bifurcated for trial purposes,

with the resisting arrest and CCDW charges assigned to an “A” case and the PFBPP

and PABPP charges deferred to a “B” case. The “A” case was tried before a jury,

after which Watson elected to have a bench trial in the “B” case.

(8) The primary dispute at trial was whether Watson ever possessed the

gun in question. There was no forensic evidence linking him to the gun, which

Watson and his three sisters testified Omisha exclusively possessed. The defense’s

narrative was at odds with the State’s account: that Watson possessed the gun and

discarded it during the struggle with the police, after which Omisha attempted to

abscond with it.

(9) During trial, the parties and the court discussed whether Watson would

testify and, if so, whether his prior felony convictions would be admissible under

Delaware Rule of Evidence 609. Watson previously was convicted of two felonies:

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Robbery Second Degree in 2010 and Possession of a Firearm in 2013. His 2013

conviction arose under federal law. Although Watson’s 2013 firearm conviction

was not a crime of dishonesty, trial counsel did not ask the court to balance that

conviction’s probative value against its prejudicial effect under Rule 609(a), and the

trial court did not expressly engage in any such balancing. Instead, the parties and

the court seemed to agree that both convictions would be admissible under Rule 609

if Watson elected to testify.

(10) After Watson decided to testify in his own defense, the State asked the

court whether it could inquire into Watson’s prior firearm conviction to challenge

his testimony as to why he ran from the police. Conceding that the State usually is

“limited to asking the defendant the date of the conviction and what it was for[,]”

the State argued that the additional inquiries should be permitted because Watson

“would have been aware that he faced serious consequences for possessing a firearm

and that it would be an appropriate question which goes to the defendant’s motives

and actions as to why he ran from the police[.]” Defense counsel argued that such

questioning would be inappropriate and irrelevant to the “A” trial. The court ruled

that, “[a]t this point, I’m going to limit [the questioning] to the crime and the date.”

(11) Defense counsel then informed the court, outside the jury’s presence,

that he intended “to ask [Watson] on direct about prior felony convictions [],” and

noted his expectation that the court would give “a limiting instruction to the jury

5
about what that means.” The trial judge agreed. During direct examination, Watson

testified that he ran from the police because, as a new parent, he felt a powerful

desire to see his son and had an unresolved capias for unpaid fines. Asked why he

resisted arrest, Watson stated that he “was not trying to go back behind walls.”

(12) Defense counsel then asked Watson about his two prior felony

convictions and whether he had a gun on the day in question. No contemporaneous

limiting instruction was given by the court following this testimony. On cross-

examination, the State re-examined Watson about his two prior convictions.

Immediately after those questions, the State asked Watson whether he was in

possession of a firearm on the day in question.

(13) Before closing arguments, the State renewed its application to argue in

closing that Watson knew that he was “a person prohibited, prohibited from having

a firearm” and that is why he fled—not because of the open capias and his desire to

see his son. The inference, the State argued, “goes only to the credibility of the

defendant’s purported reason for having run [from the police].” Ultimately, the court

ruled that the State could argue in its closing that “maybe he ran because he was a

convicted felon,” but the court denied the State’s request to refer to Watson’s

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“person prohibited” status. After closing arguments, the court gave a jury instruction

regarding the limited use of prior convictions as evidence.3

(14) The jury returned guilty verdicts in the “A” case on the resisting arrest

and CCDW charges. After dismissing the jury, the parties proceeded to the “B”

case, and the trial judge found Watson guilty of PFBPP and PABPP. The Superior

Court sentenced Watson to ten years of unsuspended Level V time, followed by

community supervision.

(15) Watson filed a direct appeal in which he contended that the

prosecution’s use of his prior felony convictions during cross-examination and in

closing argument implicitly “inject[ed] propensity evidence” into the trial, which

amounted to prosecutorial misconduct clearly prejudicial to his substantial rights.

This Court reviewed the prosecutor’s actions de novo and found that there was no

prosecutorial misconduct because the State did not use “Watson’s felony record in

service of a propensity argument.”4 Further, we held that even if some prosecutorial

3
The court gave the jury the following limiting instruction: “You may consider evidence that the
defendant was previously convicted of a crime for the sole purpose of judging the defendant’s
credibility, or believability. Evidence of a prior conviction does not necessarily destroy or damage
the defendant’s credibility, and it does not mean that the defendant has testified falsely. It is simply
one of those circumstances that you may consider in weighing the defendant’s testimony. You may
not consider evidence of the defendant’s prior convictions in deciding guilt or innocence. You may
only consider such evidence in judging the defendant’s credibility.”
4
Watson, 303 A.3d at 46.

7
misconduct occurred, the factors in Hughes v. State5 militated against a finding of

plain error, and we therefore affirmed Watson’s conviction.6

(16) In postconviction proceedings in the Superior Court, Watson argued

that his trial counsel was ineffective in conceding the admissibility of the prior

firearm conviction under Rule 609. The court disagreed, holding that Watson failed

to establish that trial counsel was ineffective or that Watson suffered prejudice from

the alleged ineffectiveness. Watson now appeals the Superior Court’s decision. This

Court reviews the Superior Court’s denial of a motion for postconviction relief for

abuse of discretion.7 We review legal and constitutional questions, including

ineffective assistance of counsel claims, de novo.8

(17) We begin by noting that Watson’s argument at this postconviction stage

is limited to an ineffective assistance of counsel claim. Watson’s brief confusingly

blends an argument about trial counsel’s representation with an argument that the

trial court committed plain error in failing to balance probative value and prejudicial

5
437 A.2d 559 (Del. 1981).
6
Watson, 303 A.3d at 50.
7
Ploof v. State, 75 A.3d 811, 820 (Del. 2013) (en banc).
8
Id.

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effect under Rule 609.9 But any argument regarding an error by the trial court is

barred under Rule 61(i) because Watson failed to raise it in his direct appeal.10

(18) To prevail on a claim of ineffective assistance of counsel, the defendant

must satisfy Strickland’s two-prong standard.11 Under Strickland, the defendant

must prove that (1) his trial counsel’s performance was objectively unreasonable;

and (2) his defense was prejudiced as a result.12 Strickland does not require that we

evaluate these prongs in any specific order. As stated by the Court in Strickland,

“[t]he object of an ineffectiveness claim is not to grade counsel’s performance. If it

is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice, which we expect will often be so, that course should be followed.”13

Accordingly, Strickland allows this court to dispose of an ineffective assistance

claim under either prong of that test. 14

9
Opening Br. at 23 (arguing that in Gregory, “the trial court [failed to] conduct[] a balancing test
to weigh the probative and prejudicial effects[]” of the introduction of the defendant’s prior drug
convictions); id. at 27 (“Gregory dictates that the failure of the Court to conduct a balancing test
prior to the admission of the gun charge pursuant to D.R.E. 609 was plain error.” (emphasis
added)); Watson, 303 A.3d at 45.
10
Super. Ct. Crim. R. 61(i)(3); Cochran v. State, 931 A.2d 436, 2007 WL 1452725, at *1 (Del.
May 17, 2007) (TABLE); Brown v. State, 840 A.2d 641, 2003 WL 22994216, at *1 (Del. Dec. 18,
2003) (TABLE).
11
466 U.S. 668, 687 (1984).
12
Strickland, 466 U.S. at 687–88, 691–92.
13
Id. at 697.
14
Green v. State, 238 A.3d 160,174–75 (Del. 2020) (“We may dispose of an ineffective-assistance
claim based on the absence of sufficient prejudice without addressing the performance prong if, in
fact prejudice is lacking.”) (citing Strickland, 466 U.S. at 697); State v. Vasquez, 2001 WL 209867,
at *1 (Del. Super. Jan. 31, 2001) (“Since the Court has concluded that Defendant has failed to
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 (19) We conclude that this case is best resolved under Strickland’s prejudice

prong. On direct appeal, we held that the State did not explicitly or implicitly use

Watson’s prior convictions as propensity evidence.15 Watson’s postconviction

motion effectively seeks to revisit that holding, but his motion falters as to prejudice

because he has not shown that it is reasonably probable that (i) the trial court would

have excluded the evidence if trial counsel challenged its admission, or (ii) exclusion

of the evidence would have changed the proceeding’s outcome.

(20) Under Strickland’s second prong, “[i]t is not enough for the defendant

to show that the errors had some conceivable effect on the outcome of the

proceeding.”16 The movant “must make specific allegations of actual prejudice and

substantiate them.”17 These allegations must show “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.”18 “A reasonable probability is a probability sufficient

establish sufficient cause under Rule 61(i)(3)(A), it need not address the issue of prejudice under
Subsection (i)(3)(B).”) (citing Flamer v. State, 585 A.2d 736, 747–48 (Del. 1990)).
15
Watson, 303 A.3d at 39.
16
Id. at 693.
17
Outten v. State, 720 A.2d 547, 552 (Del. 1998) (en banc) (quoting Wright v. State, 671 A.2d
1353, 1356 (Del. 1996) (en banc), cert. denied, 517 U.S. 1249 (1996)).
18
Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 694).

10
to undermine confidence in the outcome.”19 In sum, the defendant must prove actual

prejudice.20

(21) Watson’s motion does not show that he was prejudiced by trial

counsel’s failure to object to his prior firearm conviction’s admissibility under Rule

609(a). Even if trial counsel had objected and the trial court had conducted the

requisite balancing test, the decision of whether to admit the past firearm conviction

fell within the trial court’s discretion. This court has never ruled that prior

convictions that are similar to a charged offense always must be excluded under Rule

609’s balancing test, and, in fact, we have previously held that a trial court did not

abuse its discretion in finding that the probative value of a similar prior conviction

outweighs its prejudicial effect.21 The trial court therefore reasonably could have

concluded that the 2013 conviction’s probative value outweighed its prejudicial

effect, and Watson has not shown there is more than a “theoretical possibility” that

the trial court would have excluded the conviction.22

19
Strickland, 466 U.S. at 694.
20
Id. at 693 (“[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are
subject to a general requirement that the defendant affirmatively prove prejudice.”).
21
In some instances, the court has found the admission of a prior conviction prejudicial when the
prior conviction was similar to the current charges. State v. Ashley, 1999 WL 463708, at *4 (Del.
Super. Mar. 19, 1999) rev’d on other grounds, 798 A.2d 1019 (Del. 2002). In other instances, this
Court has found that the similar conviction’s probative value outweighs its prejudicial effect. Hines
v. State, 248 A.3d 90, 103 (Del. 2021); Baldwin v. State, 129 A.3d 231, 2015 WL 7756857, at *3
(Del. 2015) (TABLE); Massey v. State, 953 A.2d 210, 217–18 (Del. 2008).
22
Frey v. Fulcomer, 974 F.2d, 348, 358 (3d Cir. 1992).

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 (22) Moreover, even if the trial court had excluded the conviction, it is not

reasonably probable that the result of the trial would have been different.23 To the

contrary, in resolving Watson’s direct appeal, we held that this was not a close case.

The defense’s theory required the jury to make credibility determinations about

several defense witnesses other than Watson, and the admission or exclusion of his

prior firearm conviction had no bearing on the other witnesses’ credibility. In

affirming Watson’s convictions on direct appeal, we reasoned that:

We disagree with Watson’s contention that, because the State and the
defense offered “divergent testimony,” leaving the jury “to decide
which cohort of witnesses was more credible,” this was a close case. In
essence, the defense asked the jury to find that Officers White and
Cuadrado fabricated their eyewitness testimony, a class D felony under
the Delaware Criminal Code, despite Watson’s status as a convicted
felon and obvious self-interest, Omisha’s written acknowledgement of
Watson’s guilt, and Asha’s seemingly inconsistent account that she
never even saw Omisha during the incident. It was reasonably
predictable that the jury would return guilty verdicts.24

(23) Given the numerous implausible determinations the defense urged the

jury to make, Watson has not demonstrated that the admission of his prior firearm

conviction prejudiced the jury’s consideration of the evidence.

23
See, e.g. Starling v. State, 130 A.3d 316, 333 (Del. 2015).
24
Watson, 303 A.3d at 50.

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 NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY THE COURT:

/s/ Abigail M. LeGrow
Justice

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