Opinion
216 2023
02-28-2024
RYAN SHOVER, Defendant Below, Appellant, v. STATE OF DELAWARE, Appellee.
Submitted: December 22, 2023
Court Below: Superior Court of the State of Delaware Cr. ID No. 1511001640 (N)
Before TRAYNOR, LEGROW, and GRIFFITHS, Justices
ORDER
Abigail M. LeGrow Justice
After consideration of the parties' briefs and the record on appeal, it appears to the Court that:
(1) The appellant, Ryan Shover, filed this appeal from a Superior Court order dismissing his first motion for postconviction relief under Superior Court Criminal Rule 61. For the reasons discussed below, we affirm the Superior Court's judgment.
(2) In 2012, Michael Kman, Paul DiSabatino, and David Hess began plotting the murder of Wayne Cappelli, a friend of DiSabatino and Hess, to obtain the proceeds of an insurance policy on Cappelli's life. Kman approached Shover, who did landscaping work for Kman, to see if he would be interested in killing someone for money. Shover was willing do so for $30,000. Kman told Shover he would not receive the full amount until the insurance policy proceeds were paid out. With the assistance of Kman and Hess, Cappelli obtained a $360,000 life insurance policy in the fall of 2012. Cappelli later changed the policy beneficiary from his daughter to DiSabatino and DiSabatino's wife, whom Cappelli named as his daughter's guardians in his will.
(3) On February 5, 2013, Hess showed Kman and Shover the route that Cappelli typically walked from his job at SuperFresh to the apartment that he shared with his daughter and Hess in Claymont. Shover identified a grassy, shrubby section on Delaview Avenue as looking "like the best possible spot" to kill Cappelli.
App. to Answering Br. at B201.
(4) On February 16,2013, while Kman and DiSabatino were in Pittsburgh, Hess arranged to meet Cappelli at SuperFresh and walk home together. Hess was responsible for ensuring that Cappelli walked home and encountered Shover instead of getting a ride home. After missing the last bus from Rodney Square to Marsh Road, Hess texted Cappelli to tell him he could not make it and to go home.Cappelli left SuperFresh at approximately 9:17 p.m. That was the last time Cappelli was seen alive.
Hess also proceeded to walk home. Surveillance video from the McDonald's on Concord Pike showed Hess stopped there between 9:31 p.m. and 9:43 p.m. Hess's girlfriend eventually met him near Harvey Road and Veale Road around 11:00 p.m.
(5) Shover's family owned a 1999 green Chevy Cavalier with missing hubcaps, paint damage, and a sticker in the back window. Surveillance video from a residence on Veale Road showed a vehicle consistent with a late 1990s or early 2000s green Chevy Cavalier turning right onto Delaview Avenue from Veale Road and heading toward Marsh Road at 8:08 p.m. on February 16, 2013. The vehicle appeared to have a white sticker across the back window. Surveillance video from SuperFresh showed what appeared to be the same vehicle, which had no hubcaps and marks consistent with paint damage to the roof, the hood, and the trunk, making a U-turn in the parking lot heading back towards Marsh Road at 8:10 p.m. Another video showed a Chevy Cavalier leaving Delaview Avenue at 10:09 p.m. and making a left onto Veale Road.
(6) Cell phone and cell tower records for February 16, 2013, showed that Shover's cell phone was in the vicinity of York, Pennsylvania and Hallam, Pennsylvania between 4:41 p.m. and 6:18 p.m., appeared to be off between 6:18 p.m. and 11:07 p.m., and was in the vicinity of Gap, Pennsylvania at 11:09 p.m. At 11:09 p.m., a three-minute call was made from this phone to Kman's phone number. According to Kman, Shover called to tell him the job was done.
(7) On February 18, 2013, Cappelli's body was found in a wooded area near 2116 Delaview Avenue, which was an approximately 17-minute walk from SuperFresh. An aluminum baseball bat with reddish-brown stains (later determined to be Cappelli's blood) was found in a nearby creek bed. The medical examiner determined that Cappelli's cause of death was blunt force injury to the head.
(8) No usable fingerprints were found on the baseball bat. DNA recovered from the bat was consistent with Cappelli's DNA profile. There also was a mixed DNA profile found on the bat; DiSabatino, Hess, Kman, and Shover were excluded as possible contributors. The DNA profile on a cigarette found at the crime scene was consistent with an unknown female donor. There is no record of DNA testing of other items, including a piece of an air freshener and a beer bottle, found at the crime scene.
(9) After being charged in 2016 for their roles in Cappelli's murder, Hess, DiSabatino, and Kman entered into plea agreements and testified against Shover at his trial. Trial witnesses also included Gabriel Stouffer, Shover's former cellmate, who testified that Shover told him he had gone to Delaware, "ambushed the guy," and "beat his brains out." Another inmate, Rodger Atwood, testified that Shover bragged to him about murdering a man in February 2013 as part of a plot to obtain the proceeds of the victim's insurance policy. Both men had entered into cooperation agreements in which the Delaware Department of Justice agreed to recommend that federal authorities take their assistance into account for sentencing purposes.
App. to Answering Br. at B665.
(10) In his testimony, Shover maintained his innocence concerning any insurance scheme and denied killing Cappelli. He admitted to knowing Kman, DiSabatino, and Hess. He also admitted to having a Chevy Cavalier with a white sticker across the back window. Shover's brother testified that Shover spent February 16, 2013, at his house in Yorkhaven, Pennsylvania and was still there at 7:45 p.m. when his brother had to leave.
(11) The jury found Shover guilty of first-degree murder (intentional murder and felony murder), possession of a deadly weapon during the commission of a felony, insurance fraud, and first-degree conspiracy. The Superior Court sentenced Shover to two life terms plus fifteen additional years of incarceration.
(12) On direct appeal, Shover argued that the Superior Court erred when it denied: (i) his motion for a mistrial based on the State's failure to produce before trial a statement Hess made to one of the prosecutors; (ii) his objections to a prosecutor refreshing Atwood's recollection with the unauthenticated notes of an FBI agent who interviewed Atwood before trial and engaging in improper vouching; and (iii) his motion for judgment of acquittal on the insurance fraud and related charges. This Court affirmed the Superior Court's rulings.
Shover v. State, 217 A.3d 1095, 2019 WL 2206270 (Del. May 21, 2019) (TABLE).
(13) In July 2019, Shover filed a timely motion for postconviction relief and a motion for appointment of counsel under Superior Court Criminal Rule 61. He argued that: (i) his counsel was ineffective for failing to ensure items found at the crime scene were tested for DNA and compared to DNA on the murder weapon; (ii) the prosecutor engaged in misconduct by vouching for a witness's testimony with an FBI agent; and (iii) he was deprived of his right to confront the FBI agent who took statements from the State's star witness. The Superior Court granted Shover's motion for appointment of postconviction counsel ("Postconviction Counsel").
(14) In January 2021, Postconviction Counsel filed a motion to withdraw on the basis that there were no meritorious issues to raise. Postconviction Counsel also filed a motion to modify the protective order entered in November 2017 so that he could provide Shover with the appendices to the motion to withdraw and redacted versions of the documents and disks in Shover's file. The State opposed the motion.
(15) After an office conference with counsel, the Superior Court issued an order on August 2, 2021: (i) releasing the appendices to Shover; (ii) directing the State to propose redactions to the materials provided to Shover's previous counsel; (iii) directing Postconviction Counsel to propose redactions to the materials not produced by the State; and (iv) directing the parties to report on their progress in the review and redaction process. Between August 2021 and September 2022, Postconviction Counsel and the State reviewed, redacted, and produced documents and numerous disks to the Department of Correction for Shover's review.
(16) On December 27, 2021, Shover filed a motion for reconsideration of his motion for postconviction relief based on this Court's decision in Howell v. State, the denial of his right to present witnesses' plea and cooperation agreements to the jury, and his continuing inability to view discovery materials. On July 11, 2022, Shover filed a letter complaining that he had received only useless and irrelevant materials. The State informed the court that the Department of Correction reported that Shover had not asked to view any of the disks. On September 15,2022, Shover filed a motion for transcripts. Postconviction Counsel advised the court that he had previously provided Shover with transcript excerpts and would be providing him with complete transcripts. The Superior Court therefore denied Shover's motion for transcripts as moot.
268 A.3d 754 (Del. 2021).
(17) On September 15, 2022, Shover also moved to compel the production of all agreements between the State and the witnesses who testified against Shover at trial. As directed by the court, the State filed a response to the motion to compel on January 25, 2023. In its response, the State disputed that Shover was entitled to additional discovery, but reviewed the agreements and pretrial statements of Hess, DiSabatino, Kman, Atwood, and Stouffer that were previously provided to Shover's trial counsel.
(18) As to Hess and DiSabatino, the State had already represented that there were no signed cooperation agreements. The State explained that it provided Hess's and DiSabatino's plea agreements and all but one of their pretrial statements to Shover's trial counsel before trial. The State's failure to produce one of Hess's pretrial statements was discovered and rectified during trial. The State further explained that it produced copies of Kman's proffers and plea paperwork to Shover's trial counsel before trial. According to the State, the record did not reflect the existence of any other signed cooperation agreements. The State also produced Atwood's and Stouffer's cooperation agreements to Shover's counsel before trial. To resolve Shover's motion to compel, the State agreed to produce redacted copies of any identified items that did not already appear in the appendices to Postconviction Counsel's motion to withdraw or were not already provided to the Department of Correction for Shover's viewing.
(19) On February 8, 2023, the Superior Court denied Shover's motion to compel as moot and set a briefing schedule for resolution of Shover's postconviction motion. Among other things, the briefing schedule required Shover to respond to Postconviction Counsel's motion to withdraw by March 24, 2023, and warned that his failure to respond would be deemed a waiver. On February 21, 2023, Shover again moved to compel the production of Atwood's and Stouffer's cooperation agreements. The State reiterated that those materials had already been provided to the Department of Correction for Shover's viewing. The Superior Court denied Stouffer's motion to compel as moot.
(20) On May 15, 2023, after Shover failed to respond to Postconviction Counsel's motion to withdraw, the Superior Court summarily dismissed his motion for postconviction relief. The Superior Court determined that Shover's ineffective assistance of counsel claim was without merit, his prosecutorial misconduct claim was previously adjudicated and therefore procedurally barred, and he was not deprived of his right to confront the FBI agent who prepared the notes used to refresh Atwood's recollection during trial. The Superior Court also granted Postconviction Counsel's motion to withdraw. This appeal followed.
(21) We review the Superior Court's denial of a motion for postconviction relief for abuse of discretion. We review questions of law de novo Rule 61 's procedural requirements must be met before we consider the merits of any underlying claims for postconviction relief.
Baynum v. State, 211 A.3d 1075, 1082 (Del. 2019).
Id.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
(22) Shover's arguments on appeal may be summarized as follows: (i) he was not allowed to view DiSabatino's, Hess's, and Kman's plea deals before they testified, present those plea deals to the jury, or cross-examine the witnesses about their deals; (ii) he was deprived of his right to confront an FBI agent about pretrial witness statements; and (iii) his trial counsel was ineffective for failing to move for a continuance and obtain further information to impeach witnesses and for failing to subject the State's witnesses to adversarial testing. Sho ver has waived appellate review of claims he raised below but did not argue on appeal.
Somerville v. State, 703 A.2d 629, 631 (Del. 1997) (citing Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993)).
(23) Shover did not make any claims in his motion for postconviction relief concerning the trial witnesses' plea or cooperation agreements, but he did raise those agreements in the motion for reconsideration he filed on December 27, 2021, and subsequent motions he filed to compel the production of those agreements. Even assuming Shover's claims concerning the plea and cooperation agreements were properly raised and not procedurally barred, those claims are meritless. The record demonstrates that DiSabatino's, Hess's, and Kman's plea agreements and Atwood's and Stouffer's cooperation agreements were provided to Shover's trial counsel before trial. Those agreements were all admitted into evidence at trial. Shover's trial counsel had the opportunity to cross-examine those witnesses about their agreements. As to Shover's suggestion that he was harmed by his inability to review those agreements personally until the postconviction proceedings, he has not identified anything in the agreements that he claims should have been raised at trial.
The Superior Court declined to consider claims raised in the motion for reconsideration, finding that Shover had elected not to contest or submit a timely response to Postconviction Counsel's motion to withdraw.
(24) Like Postconviction Counsel and the Superior Court, we understand Shover's claim that he was deprived of his right to confront an FBI agent about pretrial witness statements as referring to the FBI agent who interviewed Atwood before trial. When Atwood testified at trial about Shover's description of certain individuals involved in Cappelli's murder, the prosecutor sought to refresh Atwood's recollection by showing him notes taken by an FBI agent who interviewed Atwood before trial. Shover's trial counsel objected to the prosecutor refreshing Atwood's recollection with the unauthenticated notes of a person who was not subject to cross-examination. The Superior Court overruled the objection, holding that the use of such notes was permissible under Rule 612 of the Delaware Uniform Rules of Evidence.
(25) On appeal, Shover argued that the Superior Court erred in allowing the prosecutor to use the unauthenticated notes of a person who was not subject to cross-examination. This Court affirmed the Superior Court's decision overruling Shover's objection. Rule 61(i)(4) bars consideration of any ground for relief that was previously adjudicated. Because Shover's claim that he was deprived of his right to confront the FBI agent was previously adjudicated, Rule 61 (i)(4) bars consideration of this claim.
Shover, 2019 WL 2206270, at *1.
(26) Finally, Shover argues that his trial attorneys were ineffective because they failed to move for a continuance so that they could obtain further information to impeach witnesses and failed to subject State witnesses to adversarial testing. To prevail on an ineffective assistance of counsel claim, a defendant must demonstrate that: (i) his counsel's representation fell below an objective standard of reasonableness; and (ii) but for counsel's unprofessional errors, there is a reasonable probability that the outcome of the proceedings would have been different. Shover does not meet this standard. He does not identify the additional information that his trial attorneys purportedly could have obtained to impeach witnesses. He also ignores his trial attorneys' extensive cross-examination of DiSabatino, Hess, and Kman about their roles in Cappelli's murders, their lies and omissions in pretrial statements to authorities, and their motivations for testifying against Shover. Shover's trial counsel similarly cross-examined Atwood and Stouffer about how they knew each other in an effort to cast doubt on their testimony that Shover confessed to them. In any event, Shover did not raise these claims in the Superior Court. Absent plain error, which we do not find here, the Court will not consider these claims for the first time on appeal. For all the foregoing reasons, the Superior Court did not err in dismissing Shover's motion for postconviction relief.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
Del. Supr. Ct. R. 8.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.