Opinion
Cr. ID. No. 9808000280A
11-20-2015
STATE OF DELAWARE v. DAMONE FLOWERS, Defendant.
Andrew J. Vella, Esquire, Deputy Attorney General, 820 N. French Street, 7th Floor, Department of Justice, Wilmington, Delaware, Attorney for the State. Michael W. Modica, Esquire, 715 N. King Street, Suite 300, P.O. Box 437, Wilmington, Delaware, Attorney for Defendant.
Upon Commissioner's Report and Recommendation that Defendant's Motion for Postconviction Relief Should be Granted ADOPTED IN PART
DENIED IN PART OPINION Andrew J. Vella, Esquire, Deputy Attorney General, 820 N. French Street, 7th Floor, Department of Justice, Wilmington, Delaware, Attorney for the State. Michael W. Modica, Esquire, 715 N. King Street, Suite 300, P.O. Box 437, Wilmington, Delaware, Attorney for Defendant. JOHNSTON, J.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Damone Flowers was convicted of Murder in the First Degree and Possession of a Firearm During the Commission of a Felony on October 30, 2002. He was sentenced to life in prison, plus ten years. The Delaware Supreme Court affirmed Defendant's convictions on August 31, 2004. On May 3, 2005, Defendant filed a pro se Motion for Postconviction Relief. Defendant submitted a hand written, 133-page memorandum of law, alleging eleven separate grounds for relief. On June 27, 2005, the Court denied Defendant's lengthy Motion without evaluating its merits. The Court dismissed the Motion without prejudice and stated that Defendant may amend the Motion to comply with the restrictions set forth in Rule 61(b)(6).
On May 14, 2012, Defendant filed a second pro se Motion for Postconviction Relief. Subsequently, Defendant obtained counsel ("Rule 61 Counsel"). On April 25, 2013, Rule 61 Counsel filed an Amended and Superseding Motion for Postconviction Relief. Defendant's counsel in the 2003 trial ("Trial Counsel") filed an Affidavit of Counsel on November 13, 2013. On March 18, 2014, the State filed its Response to Defendant's Motion for Postconviction Relief. Defendant filed a Reply Brief in Support of His Motion for Postconviction Relief on December 18, 2014.
The motions were referred to a Superior Court Commissioner in accordance with 10 Del. C. § 512(b) and Superior Court Criminal Rule 62 for proposed findings of fact and conclusions of law. The Commissioner issued the Report and Recommendation on April 23, 2015. The Commissioner recommended that Defendant's Motion for Postconviction Relief be granted.
All "Rules" referred to hereinafter will be the Superior Court Criminal Rules.
"Within ten days after filing of a Commissioner's proposed findings of fact and recommendations . . . any party may serve and file written objections." On May 4, 2015, the State filed Objections to the Commissioner's Report and Recommendation. On May 14, 2015, Defendant filed a Response to the State's Objections to Commissioner's Report and Recommendation. The Court has considered the Commissioner's Report and Recommendation, as well as the State's Objection and Defendant's Response.
Super. Ct. Crim. R. 62(a)(5)(ii).
ANALYSIS
Upon de novo review, for the reasons set forth below, the Court holds that the Commissioner's Report and Recommendation dated April 23, 2015, should be adopted in part and denied in part.
Defendant's Motion for Postconviction Relief asserts five claims, each alleging that his Sixth Amendment right to effective assistance of counsel was violated. Defendant claims: (1) Trial Counsel was ineffective by failing to object to the admission of five section 3507 statements based on inadequate foundation; (2) Trial Counsel was ineffective by failing to object to the admission of the section 3507 statements as cumulative to the respective witnesses' live in-court testimony; (3) Trial Counsel was ineffective by failing to object to allowing the jury to have copies of the section 3507 statements in the jury room during deliberations; (4) Trial Counsel was ineffective by failing to investigate and/or present the exculpatory evidence of five different witnesses; and (5) Appellate Counsel was ineffective by not raising claims of plain error on appeal to the erroneous admissions of the section 3507 statements during trial and as evidence given to the jury during its deliberations.
Procedural Bars
The Commissioner determined, and the Court agrees, that no procedural bars exist to prevent the Court from considering the merits of Defendant's claims. Rule 61(i)(4) is inapplicable because none of Defendant's five claims were formerly adjudicated. The Court recognizes that Defendant's claims fall outside the time limits for filing under Rule 61(i)(1), and are repetitive under Rule 61(i)(2). Further, Defendant did not assert any of the current claims in the proceedings below, as is required by Rule 61(i)(3). However, the bars to relief in Rule 61(i)(1)-(3) are inapplicable because Defendant has raised a colorable claim that there was a miscarriage of justice caused by a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.
Defendant filed his Motion for Postconviction Relief prior to the most recent amendment to Superior Court Criminal Rule 61. Therefore, Defendant's claims will be evaluated under Rule 61 as it existed on April 25, 2013.
See State v. Taylor, 2000 WL 33113935, at *2 (Del. Super.) ("[I]n order to invoke Rule 61(i)(5) and by-pass Rule 61(i)(3)'s procedural bars, Taylor not only must raise a colorable claim that there was a miscarriage of justice, he also must show that the miscarriage of justice was caused by a constitutional violation. Further, he must demonstrate that the constitutional violation involved not only a mistake, but Taylor also must show that the mistake undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to his conviction. While the thresholds imposed by Rules 61(i)(3),(4) and (5) are not insurmountable, they are substantial and they are enforced.").
The Delaware Supreme Court has held: "The Sixth Amendment requires an entirely proper foundation, if the prior statement of a witness is to be admitted under section 3507 as independent substantive evidence against an accused." "[W]hen a petitioner makes a colorable claim to a mistaken waiver of important constitutional rights Rule 61(i)(5) is available to him." Therefore, Defendant's claims satisfy the requirements of Rule 61(i)(5) and the Court will address the merits.
Blake v. State, 3 A.3d 1077, 1083 (Del. 2010).
Webster v. State, 605 A.2d 1364, 1366 (Del. 1992).
Claim 1: Failure to Object to Section 3507 Statements
The Commissioner granted relief on Defendant's first claim, finding that Defendant's Sixth Amendment right to effective assistance of counsel was violated due to Trial Counsel's failure to object to the improper foundation laid for the admission of five statements in accordance with section 3507 of Title 11 of the Delaware Code. The Commissioner's well-reasoned analysis concluded that Trial Counsel's failure to object was objectively unreasonable and resulted in prejudice to Defendant. While the Court agrees that relief should be granted for Defendant's first claim, the Court grounds its decision in Defendant's Sixth Amendment right to confront witnesses against him.
11 Del. C. § 3507 states in pertinent part:
(a) In a criminal prosecution, the voluntary out-of-court prior statement of a witness who is present and subject to cross-examination may be used as affirmative evidence with substantive independent testimonial value.
(b) The rule in subsection (a) of this section shall apply regardless of whether the witness' in-court testimony is consistent with the prior statement or not. The rule shall likewise apply with or without a showing of surprise by the introducing party.
In order for an out-of-court statement to be admitted, the proper two-part foundation first must be laid: (1) the witness must testify about "the events perceived and the out-of-court statement;" and (2) whether or not the events are true.
Johnson v. State, 338 A.2d 124, 127 (Del. 1975).
Ray v. State, 587 A.2d 439, 443 (Del. 1991).
In the present case, the State has acknowledged that it did not lay the proper foundation for the five section 3507 statements because it did not ask the witnesses whether or not the events discussed in their out-of-court statements were true. However, the State relies on the Delaware Supreme Court's holding in Moore v. State, and argues that at the time of Defendant's trial, section 3507 did not require "that the witness either affirm the truthfulness of the out-of-court statement or offer consistent testimony."
1995 WL 67104 (Del. Super.).
Id. at *2.
The State's reliance on Moore is misplaced. The foundational requirements of section 3507 are well-settled. While the case law discussing section 3507 has evolved over the years, the language of section 3507 has not changed. With respect to the truthfulness prong, the Moore Court held: "[T]here is no requirement that the witness either affirm the truthfulness of the out-of-court statement, or offer consistent trial testimony." In so finding, the Moore Court relied on the holding in Ray v. State. In Ray, the Delaware Supreme Court held that the witness must testify as to whether or not the events discussed in the out-of-court-statement are true. A witness is not required to affirm that the prior out-of-court statement is true. Rather, testimony must be elicited inquiring whether or not the prior statement was true.
Moore v. State, 1995 WL 67104, at *2 (Del.).
587 A.2d 439 (Del. 1991).
Id. at 443.
The actual answer from the witness has no bearing on the foundation that must be established for the prior statement to be admitted under section 3507. Inquiry into truthfulness is essential because the jury or trier of fact must be given the ability to evaluate the witness' credibility. The declarant's credibility must be assessed "in the light of all the circumstances presented, including any claim by the witness denying the prior statement, or denying memory of the prior statement or operating events, or changing his report of the facts."
Blake v. State, 3 A.3d 1077, 1082 (Del. 2010).
Johnson, 338 A.2d at 128.
Further, the Supreme Court has held: "[I]n order to conform to the Sixth Amendment's guarantee of an accused's right to confront witnesses against him, the [witness] must also be subject to cross-examination on the content of the statement as well as its truthfulness." Because the State failed to inquire into the truthfulness of each of the five out-of-court statements, the proper foundation was not established. Defendant was deprived of his Sixth Amendment right to confront the five witnesses with respect to the truthfulness of their respective statements. Therefore, the five section 3507 statements should not have been admitted.
Id. at 1083.
Without the five section 3507 statements, each of which implicate Defendant as the shooter, the State's case is much weaker. The record reveals that no gun was recovered, no ballistics tests were conducted, no fibers were collected or tested, no fingerprints were lifted, and no DNA was recovered and compared to Defendant's DNA. The eyewitnesses presented by the State were forgetful, uncooperative, and gave conflicting and inconsistent testimony.
For a more detailed account of the in-court testimony of the five section 3507 witnesses, see Comm. Report and Recommendation at 16-21.
Three of the five witnesses who gave section 3507 statements—McDougall, Predeoux, and Sudler—failed to identify Defendant as the shooter in their in-court testimony. The remaining two witnesses who gave section 3507 statements, Chamblee and Mays, did identify Defendant as the shooter in their in-court testimony. However, the two testified that they could not be entirely sure that Defendant was the shooter. Chamblee testified that he never saw the shooter's face, but could still identify the shooter as Defendant. Mays testified that he did not see who shot the gun. However, Mays picked Defendant out of the photo lineup and testified that the photo he selected resembled the shooter, but he could not be sure that it was definitely the shooter.
Oct. 23, 2002 Trial Transcript ("Tr. Trans.") of Matthew Chamblee at 73, 81-82.
Oct. 23, 2002 Tr. Trans. of Vernon Mays at 18.
Id.
Defendant's sister, Dawson, also testified for the State. Dawson testified that Defendant lived with her "on and off for years" prior to the shooting. She stated that after August 1, 1998, the date of the shooting, Defendant ceased living with her. However, Dawson also testified that Defendant did not have a stable address prior to the shooting. Detective Brock testified that Defendant was located in North Carolina in November 1999 and subsequently was extradited to Delaware.
Tr. Trans. of Adrienne Dawson at 173-176
Id.
Id. at 175
Tr. Trans. of Detective Brock at 33-34.
It cannot be determined with complete certainty whether the jury still would have returned a guilty verdict based on the in-court testimony of Chamblee, Mays, Dawson, and Brock. However, it is reasonable to infer that the jury relied heavily on the five section 3507 statements in returning a guilty verdict against Defendant. The Court is convinced that improper admission of the five section 3507 statements constitutes a constitutional violation that undermined the fundamental integrity and fairness of the trial.
Claims Two , Three , and Four
The Commissioner recommended that claims two, three, and four of Defendant's Motion for Postconviciton Relief be denied. The Court holds that the Commissioner's Report and Recommendation dated April 23, 2015, should be adopted with respect to claims two, three, and four for the reasons set forth therein. The Commissioner's findings are not clearly erroneous, are not contrary to law, and are not an abuse of discretion.
Claim Five: Failure to Raise Plain Error
Claim five of Defendant's Motion for Postconviction Relief alleges that Appellate Counsel was ineffective by failing to raise claims of plain error regarding: the improper admission of the five section 3507 statements during trial, and permitting the jury to review the taped section 3507 statements during deliberations. The Commissioner stated in the Report and Recommendation that Defendant's fifth claim does not need to be addressed because the same claims were alleged against Trial Counsel—who was also counsel for Defendant in the direct appeal—in claims one and three of Defendant's Motion. Because the same ineffective assistance of counsel claims were analyzed in depth in the previous claims, the Commissioner did not address claim five.
Appellate counsel was also Defendant's Trial Counsel.
This Court has decided claim one in the context of Defendant's Sixth Amendment right to confront witnesses against him. Therefore, Defendant's claim five, based on the right to effective assistance of counsel, must be evaluated separately from claim one.
Defendant argues that his Sixth Amendment right to effective assistance of counsel was violated because Appellate Counsel failed to argue on direct appeal that the five section 3507 statements were admitted without a proper foundation at trial. This issue was not raised at trial or on direct appeal. Therefore, it is procedurally barred under Rule 61(i)(3), unless Defendant can establish: (1) cause for his failure to have raised it earlier; and (2) actual prejudice.
Younger v. State, 580 A.2d 552, 555 (Del.).
The two-pronged test set out in Strickland v. Washington governs whether Defendant can demonstrate cause for failure to raise the ineffective assistance of counsel claim either at trial or on direct appeal. Although the Strickland test was developed to evaluate trial counsel, it also may be applied "to evaluate appellate counsel's performance." Defendant first must show that his counsel's representation fell below an "objective standard of reasonableness." Defendant also must prove actual prejudice. Prejudice is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." When alleging ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice.
466 U.S. 668 (1984).
Ploof v. State, 75 A.3d 811, 831 (Del. 2013).
Id. at 687.
Id. at 694.
Id.
Younger, 580 A.2d at 556.
Defendant argues that Appellate Counsel's representation fell below an objective standard of reasonableness because the issue regarding the improper foundation and admission of the five section 3507 statements was not raised on appeal. Defendant contends that the centrality and prejudicial nature of the section 3507 statements should have caused Appellate Counsel to focus on the legal errors in the admission of the statements without an adequate foundation. Defendant asserts that actual prejudice resulted because the error in admitting the five section 3507 statements, having not been raised and reviewed under a plain error standard, must be reviewed for the first time under the more strict standard that governs motions for postconviction relief. Defendant contends that if this claim had been raised on direct appeal, his conviction likely would have been reversed.
The Court finds that Defendant's Sixth Amendment right to effective assistance of counsel was violated because of the failure of Appellate Counsel to raise the issue of the improper foundation and admission of the five section 3507 statements on direct appeal. The Court recognizes that at the trial level, the decision to object is of a strategic nature. In Trial Counsel's Affidavit, he states that his strategy was to thoroughly cross-examine the witnesses regarding inconsistencies between the taped statements and in-court testimony. Trial counsel further stated that if he had objected to State's failure to inquire into the truthfulness requirement for section 3507 statements, he would have risked undermining his credibility with the jury.
When evaluating Trial Counsel's conduct, this Court "should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Therefore, at the trial level, the Court will not criticize Trial Counsel's decision to not object to the improper foundation for the five section 3507 statements. However, the same rationale cannot be applied at the appellate level. The admission of the five section 3507 statements—without inquiring into truthfulness—directly violates the language of the statute. Therefore, the Court finds that failure to raise this issue is conduct falling below an objective standard of reasonableness, and constitutes error on appeal.
Strickland, 466 U.S. at 690.
The Court also finds that Defendant suffered actual prejudice because of Appellate Counsel's failure to raise this issue on direct appeal. As stated previously, without the five section 3507 statements, the State's case against Defendant was much weaker. On direct appeal, it is likely that, if presented with the issue of the improper foundation for admission of the five section 3507 statements, the Supreme Court would have reversed Defendant's conviction in 2004. Therefore, this Court finds that Defendant suffered actual prejudice because of Appellate Counsel's failure to raise the issue regarding the improper foundation for admission of the five section 3507 statements on direct appeal.
CONCLUSION
The Commissioner's Report and Recommendation is adopted in part as to the Commissioner's factual findings as well as to claims two, three, and four. Upon de novo review, claim one is granted. Trial Counsel's failure to object to the improper foundation for admission of the five section 3507 statements resulted in a violation of Defendant's Sixth Amendment right to confrontation. Claim five also is granted on the basis of Appellate Counsel's failure to raise the same issue on direct appeal, which constituted ineffective assistance of counsel.
THEREFORE, the Court hereby Adopts the Commissioner's Report and Recommendation in part and Denies the Commissioner's Report and Recommendation in part. Defendant Damone Flowers' Motion for Postconviction Relief is hereby GRANTED. The judgments of conviction are hereby VACATED. Defendant shall be remitted for a new trial.
IT IS SO ORDERED.
/s/ Mary M . Johnston
The Honorable Mary M. Johnston