Opinion
I.D. No. 0109014782.
Submitted: October 12, 2007.
Decided: November 2, 2007.
Decision upon Defendant's Pro Se Motion for Postconviction Relief.
DENIEDJarreau Ayers, Delaware Correctional Center, Smyrna, Delaware.
Anthony A. Figliola, Jr., Esquire, Figliola Ficciolo, Wilmington, Delaware.
William L. George, Jr., Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware.
Dear Mr. Ayers and Counsel:
Jarreau Ayers ("Ayers") was charged and convicted by a jury of murder in the first degree, possession of a firearm during the commission of a felony, possession of a firearm by a person prohibited, and conspiracy in the first degree. He was sentenced to life imprisonment. Ayers appealed his conviction to the Delaware Supreme Court. The Supreme Court affirmed his conviction on March 12, 2004. Ayers' attorney at trial and on appeal was Anthony A. Figliola, Jr., Esquire ("Counsel"). Ayers filed this pro se motion for postconviction relief on March 21, 2007, alleging prosecutorial misconduct and ineffective assistance of counsel.
Ayers v. State, 844 A.2d 304 (2004).
Facts of the Crime
The record supports the following summary of facts. The history of this homicide began the day before Arthur Wells was killed. On January 21, 2000, a party was held for Gregory "Ya Yo" Simon ("Simon") in a club at the intersection of 7th and Tatnall Streets in Wilmington, Delaware. The party ended around 1:30 a.m. As people were leaving, Keenan Anderson ("Anderson"), who had attended the party, grabbed Regina Thomas, another guest. Ms. Thomas' boyfriend, Tywaan "Reality" Johnson ("Johnson"), also attended the party. Johnson told Anderson to keep his hands to himself. Anderson replied with an expletive. Johnson began screaming at Anderson. Anderson, who stands only 5' 7", asked Ayers for help. Arthur Wells ("Wells"), the victim, attempted to intercede between Johnson and Anderson, telling both men to "chill." Anderson cursed again, this time at Wells. Wells grabbed Anderson by his neck and slammed him against a car. Kennard Ringold ("Ringold"), another guest, then attempted to break up the fight between Wells and Anderson. As Anderson's friends started coming across the street to Anderson's aid, Johnson fired two shots into the air from a .45 semiautomatic handgun. Ayers then yelled to Johnson, "you busting your gun off but you ain't killing nothing." Johnson then aimed his gun in Ayers' direction and fired. That caused everyone to disperse.
Trial Tr. 143-44, October 23, 2002.
Id. at 145.
Thomas and Johnson departed in a Jeep. Ayers drove off with Ringold. Ayers asked Ringold for his gun. About a block away from the club, Ringold gave Ayers his 9mm semiautomatic handgun. Ringold stopped his car and Ayers got out of it. Anderson was riding in a car behind Ringold's car. Anderson got out of the car in which he was riding.
Ayers and Anderson were walking back toward the club at 7th and Tatnall Streets when they saw a gold Nissan. Ayers shot at the car. When the police responded to the scene, Ayers and Anderson fled in different directions. As they fled, Ayers discarded Ringold's gun; later that evening, he retrieved it. After fleeing police, Ayers and Anderson met at a nearby house where Ringold picked them up. A Winchester 9mm casing was recovered from the scene at 7th and Tatnall.
The following evening, Ayers and Anderson attended a party on 35th Street in Wilmington. After the party, Ayers, Anderson, Daymon Gregory ("Gregory") and Shannon Showell ("Showell") left the party in Gregory's car. They drove to the Getty Station at the intersection of 30th and Market Streets. Ayers, Anderson and Gregory got out of the car. As Anderson was entering the gas station, "Ya Yo" Simon was leaving. When Anderson exited the store he overheard Simon tell Ayers, "the boy you was [sic] beefing with the night before [is] over by the KFC." Across the street from the gas station was a Kennedy Fried Chicken restaurant. Ayers and Anderson saw a Jeep Cherokee on the corner. At that point, it was unclear who was inside the Jeep because of its tinted windows.
Id. at 153.
Ayers then walked over to Gregory's car and spoke to Gregory who had returned to the car. Gregory drove across the street and parked his car behind the Jeep. Showell exited Gregory's car and entered Kennedy Fried Chicken. Ayers and Anderson walked across the street toward Gregory's car. Ayers leaned inside and told Gregory to move the car "because something might get messy." Gregory moved the car and drove toward 30th and Tatnall. Gregory arrived at the intersection of 30th and Tatnall and heard several gunshots. After Gregory drove away, Wells exited the Jeep and Ayers shot him twice.
Trial Tr. 59, October 24, 2002.
Gregory turned the corner and waited alone for a few minutes on the corner of 30th and Tatnall Street where he was joined by Anderson and Showell. Gregory then drove towards 31st and Tatnall. Ayers got into the car in the middle of the 3100 block. Gregory asked what had happened. First Anderson, then Ayers stated: "We handled that nigger." Ayers also told Gregory that he "busted caps into him." Gregory asked if they still had the gun that Ayers had used the night before. Ayers replied that he had thrown it behind Rash's Food Market.
Id. at 61, 84.
Id. at 84.
Arthur Wells died as a result of gunshot wounds to his back and abdomen. The police recovered a 9mm semiautomatic handgun behind Rash's Food Market, three 9mm Winchester casings from the scene at 30th and Market, and two 9mm bullets: one from Wells' body and another from his clothing. A witness from the Bureau of Alcohol, Tobacco and Firearms testified that the 9mm casing from 7th and Tatnall, the three 9mm Winchester casings from 30th and Market, and the bullets from the victim's body and clothing matched the handgun that was found behind Rash's Food Market — the handgun that Ringold gave Ayers.
At trial, both Ayers and Anderson admitted being at the intersection of 30th and Market Streets when Wells was shot. Ayers testified that Anderson was the shooter. Ayers said that at the time of the shooting he was standing beside Fatimah Ali across the street. To contradict Anderson, who testified that he was about five feet from Ayers when he saw Ayers shoot Wells, the defense called Fatimah Ali as a witness. She testified that she was at the scene of the crime, standing across the street with Ayers by her side, when Wells was shot.
Trial Tr. 63-64, October 29, 2002.
Trial Tr. 160-61, October 23, 2002.
Trial Tr. 34-36, 42-43, October 29, 2002.
In addition to the recovery of bullets from the victim's body and casings at the scene of the shootings, Wilmington Police Department Detective John Ciritella, the chief investigating officer, executed a search warrant at the residence of Tia Queen, a place frequented by Ayers. Seized in the search were two 9mm Winchester Luger bullets.
Prosecutorial Misconduct
Ayers contends that the prosecutor committed prosecutorial misconduct by "knowingly making false comments during closing in order to down grade [sic] the creditability [sic] of Defense alibi witness." According to Ayers, the prosecutor should not have challenged the credibility of Fatimah Ali by highlighting her failure to share her story with any law enforcement officer until she testified at trial.
Prosecutor's comments: "Again, you heard from a few people who testified for the defendant, people who never came forward to police, despite the fact that their friend was arrested and facing trial on murder first degree charges, until just before trial, or, in fact, took the stand and gave their statement for the first time." (Trial Tr. 45-46, October 23, 2002).
Because a claim for prosecutorial misconduct could have been raised on direct appeal but was not, Ayers' claim for prosecutorial misconduct is procedurally barred under Superior Court Criminal Rule 61(i)(3). To avoid the bar, the defendant must show cause for relief from the procedural default and prejudice. He has shown neither.
Super. Ct. Crim. R. 61(i)(3)(A), (B).
Ineffective Assistance of Counsel
To prevail on a claim based on ineffective assistance of counsel, Defendant must establish: (a) that counsel's representation fell below an objective standard of reasonableness; and (b) that, but for counsel's unprofessional errors, there is a reasonable probability that the outcome of the case would have been different. When evaluating counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of professional assistance." Failure to satisfy one prong will render the claim unsuccessful and the court need not address the remaining prong. To establish a claim for ineffective assistance of counsel, the defendant must allege concrete allegations of actual prejudice and substantiate them.
Strickland v. Washington, 466 U.S. 668, 688 (1984).
Id. at 669.
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Prosecutor's Reference to Seized Bullets
During both cross examination of Ayers and in his closing argument, the prosecutor referred to two 9mm Winchester Lugar bullets found in a search of Tia Queen's residence the evening after the shooting. Ayers was no stranger to her residence. Ayers testified that he had access to the building where she stayed; that he had stayed at the residence "a couple times"; that he went to the residence the afternoon after the shooting; and that he was at the house when the search was executed. Detective Ciritella testified that the bullets recovered from the residence were not sent for ballistic testing; they were destroyed prior to trial. Defense counsel's strategy was to point out that the bullets could not be matched to the gun. During closing, the State argued that the two bullets were 9mm Winchester Luger bullets, the same brand and caliber as the bullet found in the victim's body and the casings found at 7th and Tatnall and 30th and Market Streets. Ayers contends that reference to the bullets amounts to prosecutorial misconduct and that Counsel's failure to object to the prosecutor's references amounts to ineffective assistance of counsel.Evidence regarding the bullets from the residence Ayers frequented was relevant to the prosecution. The bullets were the same type as those used at the crime scene. Thus, the bullets and casings from the crime scene were linked with Ayers, not Anderson. It was not prosecutorial misconduct to offer the evidence. It was not ineffective assistance of counsel not to object to admissible evidence.
Eyewitness Testimony Regarding Defendant's Clothing
Ayers claims that Counsel failed to object during the prosecutor's direct examination of Anderson about Ayers' clothing. Ayers testified that he was wearing a hoodie the night Wells was killed. Anderson testified that Ayers was wearing a jacket with a hood. It appears that Ayers' argument regarding ineffective assistance is predicated on the following testimony by Anderson:
Trial Tr. 154, October 23, 2002.
Q: What kind of clothes was he [Ayers] wearing that night?
A: Green. I think like a green goose or something fur on the collar.
Q: Light green, dark green?
A: Dark green.
Q: So dark coat with a hood on it?
A: Yeah.
Q: What kind of pants?
A: Black jeans.
Ayers argues that the prosecutor "coerced" Anderson to say that he was wearing a hood. Other testimony, elicited by defense counsel, is entirely consistent with that elicited by the prosecutor:
Trial Tr. 191, October 23, 2002. Anderson testified that Ayers wore a puffy, dark green jacket with fur around it and a hood. (Trial Tr. 191, October 23, 2002). Ayers testified he wore a "hoodie." (Trial Tr. 68, October 29, 2002). Curtis testified that she saw Ayers with a "hoodie." (Trial Tr. 133, October 24, 2002). Fatimah Ali saw Ayers in a "hoodie." (Trial Tr. 35, October 29, 2002). Lakeysha Ayers saw Jarreau Ayers in a "hoodie." (Trial Tr. 22, October 29, 2002).
Q: What was he [Ayers] wearing?
A: Black jeans, black boots and a green jacket, a goose with fur around it.
Q: A green jacket with fur around it?
A: Yeah. Puffy dark green jacket and it wasn't his jacket.
Q: Did he have a hoody on?
A: Did it have a hood on?
Q: Did it have a hoody?
A: It had a hood on it, the jacket had a hood on it.
Q: What color was the jacket?
A: Dark green.
Q: And you didn't have a hoody on?
A: No.
There is nothing to suggest that the testimony was coerced. The facts do not support the defendant's contention. He has failed to show ineffective assistance of counsel.
Inconsistency of Eyewitness' Testimony
Ayers also contends that Counsel was ineffective in his cross examination of the State's witness, Keenan Anderson. He claims that Counsel did not attack the inconsistencies between Anderson's statement to Detective Ciritella prior to trial and his testimony at trial. In his statement to the detective, Anderson claimed he was across the street pumping gas for his girlfriend when Ayers shot Wells. At trial, Anderson testified that he and Ayers walked together across the street to confront the people in the Jeep, putting himself in closer proximity to the victim. Anderson said he was about five feet from Ayers when the shooting took place.
Trial Tr. 156, October 23, 2002.
Id. at 160-61.
Ayers is correct that his counsel did not question Anderson about his inconsistent statement. Anderson's testimony at trial better served Ayers who pointed to Anderson as the killer. Raising the issue would have undermined Ayers' case. The purpose of Figliola's cross examination of Anderson was to attack his story. Figliola sought to show that Anderson was laying the blame on Ayers to protect himself. Figliola also focused on the fact that Anderson, not Ayers, had the motive to shoot Wells because Wells assaulted Anderson the night before.
Ayers has failed to show Counsel's representation fell below an objective standard of reasonableness. He has also failed to show that but-for Counsel's errors, the result of the trial would have been different.
The motion for postconviction relief is DENIED.
IT IS SO ORDERED.