State v. Anderson, 012121 DESUP, 1508015476 A

Docket NºCr. ID. 1508015476 A, 1508015476 B
Opinion JudgeHonorable Mary M. Johnston, Judge
Party NameSTATE OF DELAWARE, Plaintiff, v. HAKIEM ANDERSON, Defendant.
Case DateJanuary 21, 2021
CourtSuperior Court of Delaware

STATE OF DELAWARE, Plaintiff,

v.

HAKIEM ANDERSON, Defendant.

Cr. ID. Nos. 1508015476 A, 1508015476 B

Superior Court of Delaware

January 21, 2021

Submitted: November 24, 2020

Upon Defendant's Amended Motion for Reconsideration of Commissioner's Order DENIED

and

Upon Commissioner's Report and Recommendation That Defendant's Motion for Postconviction Relief Should Be Denied ADOPTED

ORDER

Honorable Mary M. Johnston, Judge

This 19th day of January, 2021, the Court has considered Defendant's Motion for Postconviction Relief (the "Rule 61 Motion"), the State's Response to Defendant's Rule 61 Motion, the Commissioner's Report and Recommendation, Defendant's Amended Motion for Reconsideration of Commissioner's Order (the "Motion for Reconsideration"), the State's Response to Defendant's Motion for Reconsideration, and the relevant proceedings below. For the reasons set forth in this Order, Defendant's Motion for Reconsideration is DENIED. The Commissioner's Report and Recommendation dated October 19, 2020 is ADOPTED.

BACKGROUND

On August 15, 2015, Defendant got into an argument with Markevis Clark ("Clark").1 Defendant left following the argument, but returned later the same night and shot Clark in the head.2 There were three witnesses to the shooting- Keisha Waters ("Waters"), Theresa Brooks ("Brooks"), and Joseph Brown ("Brown").3 Additionally, Clark's biological father, Arto Harrison ("Harrison"), gave a recorded statement to the police implicating Defendant in the shooting.4Defendant was arrested and charged with Clark's murder.

During Defendant's trial, Brown testified for the State.5 His testimony was erratic and included non-responsive personal opinions.6 Additionally, when Harrison failed to appear as scheduled to testify, the State moved to introduce into evidence Harrison's recorded statement.7 The Court granted the State's request.8 After the State rested its case in chief, Harrison appeared and testified on Defendant's behalf.9

On December 8, 2017, a jury found Defendant guilty of Murder in the First Degree and Possession of a Firearm During the Commission of a Felony.10Defendant appealed his conviction.11 On November 20, 2018, the Supreme Court affirmed Defendant's conviction.12

On February 21, 2019, Defendant filed timely pro se Motions for Postconviction Relief and Appointment of Counsel.13 The Court granted Defendant's Motion for Appointment of Counsel.14 On November 14, 2019, Defendant's Postconviction Counsel filed a timely Rule 61 Motion for Postconviction Relief.15 The Rule 61 Motion was assigned to a Superior Court Commissioner pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Procedure Rule 62(a)(5).

In the Rule 61 Motion, Defendant argued that his Trial Counsel was ineffective based on five grounds. First, Trial Counsel failed to object to Brown's testimony or ask for a curative instruction. Second, Trial Counsel failed to object to a replay of the video recording of Harrison's statement to the police. Third, Trial Counsel improperly elicited testimony which created an inference that Defendant had a prior criminal history. Fourth, Trial Counsel failed to obtain recordings of favorable phone conversations. Fifth, Trial Counsel failed to request a missing evidence instruction regarding an allegedly exculpatory telephone conversation. After analyzing each of Defendant's arguments, the Commissioner found that Defendant was unable to meet his burden for showing that Trial Counsel was ineffective.16 The Commissioner recommended that the Rule 61 Motion be denied.17

In response to the Commissioner's Report, Defendant filed a Motion for Reconsideration on October 29, 2020. In his Motion for Reconsideration, Defendant argues that "the Commissioner's order was based upon findings of fact that are clearly erroneous, or are contrary to law, or the result of an abuse of discretion."18 Each of Defendant's specific objections are discussed in turn below.

The State filed a Response to Defendant's Motion for Reconsideration on November 13, 2020. In its Response, the State argues that "[t]his Court should deny [Defendant's Motion for Reconsideration] because he only 'restate[s] the grounds for relief set forth in his initial motion,' the 'Commissioner correctly applied the appropriate legal standard to [Defendant's] claims of ineffective assistance of counsel,' and the Commissioner 'correctly developed a factual record from which to evaluate those claims.'"19

STANDARD OF REVIEW

Review of the Commissioner's Report

Under Delaware Superior Court Criminal Rule 62(a)(5), Commissioners are granted the authority to consider postconviction relief hearings. After analyzing a defendant's Rule 61 Motion for Postconviction Relief, a Commissioner will "submit to a judge of the Court proposed findings of fact and recommendations for the disposition, by a judge, of [the motion]."20 "A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which an objection is made. A judge may accept, reject, or modify, in whole or in part, the findings of fact or recommendations made by the Commissioner."21

Ineffective Assistance of Counsel

In order to succeed on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient, i.e., that it fell below "an objective standard of reasonableness," and that counsel's deficient performance prejudiced the defendant.22 In other words, a defendant must show that "but for counsel's unprofessional errors, the result of the proceeding would have been different."23 Counsel "may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities."24 Finally, a reviewing court must be careful to consider counsel's actions based on the information available at the time and "avoid peering through the lens of hindsight."25

ANALYSIS

Trial Counsel's Decisions Regarding Brown's Testimony were Reasonable

During the State's case in chief, Brown testified as a witness to the shooting. While testifying, Brown became emotional and made incendiary comments, such as calling Defendant a "snake in the grass" and "guilty."26 Defendant argued in his Rule 61 Motion that Trial Counsel was ineffective for not objecting to inflammatory portions of Brown's testimony or asking for a mistrial or curative instruction. The Commissioner found that "Brown's comments were random and unpredictable."27 The Commissioner further found that Counsel's choice to not object to Brown's testimony, and instead let him appear irrational before the jury, was an "informed strategy."28

Defendant argues in his Motion for Reconsideration that "[t]he Commissioner's determination is clearly erroneous because it reflected a minimization of the impact of the egregious, entirely objectionable comments made by Brown."29 Defendant further argues that "excusing [Trial Counsel's] negligence by accepting that his strategy to make Brown appear 'irrational' was reasonable is clearly erroneous" because "[g]iving a witness a green light to make repeated denigrating and incriminating comments about the Defendant is not a reasonable strategy."30 The State argues in response that the Commissioner's conclusion was reasonable and supported by the record.[31]

The United States Supreme Court has repeatedly cautioned against second guessing decisions made during a trial. "Because advocacy is an art and not a science, and because the adversary system requires deference to counsel's informed decisions, strategic choices must be respected . . . if they are based on professional judgment."[32] Further, "[r]are are the situations in which the 'wide latitude counsel must have in making tactical decisions' will be limited to any one technique or approach."33 As the Commissioner stated, "[d]efense strategy is not always successful, but that does not mean Trial Counsel was ineffective."34

In his affidavit, Trial Counsel stated that he "believed prior to cross that Brown's demeanor was such that it would limit his credibility."35 He pointed out during cross that "some if not all of [Brown's] testimony was contrary to the other witnesses" and that there were discrepancies between Brown's statement to the police and his testimony.36 Trial Counsel established on cross that "Brown did not come forward with his information until a period of one month from the homicide and only after being placed under arrest."37 He also established that Brown was "high on drugs and beer" at the time of shooting.38

While some of Brown's testimony was objectionable, it is clear that Trial Counsel had a considered plan for discrediting Brown before the jury. Not objecting to Brown's statements was part of that plan. Trial Counsel believed that Brown's emotional statements, coupled with what was established on cross-examination, would make the jury disregard his testimony. While Trial Counsel's strategy was ultimately unsuccessful, the Court finds that the strategy was part of an informed decision based on professional judgment. Therefore, Defendant's first argument fails.

Trial Counsel Reasonably Challenged Replaying Harrison's Statement

When Harrison failed to appear during the State's case in chief, the State sought to enter a recording of Harrison's statement to the police into evidence.39 Trial Counsel objected but was overruled.40 The recording was then entered into evidence and played for the jury.41 When the State played the recording, there was a technical difficulty which caused the video to skip.42 The State argued that the video glitch occurred at a crucial point and could mislead the jury.43 When the State requested that the recording be...

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