IN THE SUPERIOR COURT OF THE STATE OF …...IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE, ) ) v. ) I.D. No. 9911016309 ) MICHAEL JONES,

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE, ) ) v. ) I.D. No. 9911016309 ) MICHAEL JONES, ) ) Defendant. )

Submitted: August 11, 2008 Decided: September 3, 2008

UPON CONSIDERATION OF DEFENDANT’S FIRST PRO SE MOTION FOR POSTCONVICTION RELIEF

DENIED Michael Jones, Pro Se. Kevin J. O’Connell, Esquire, Wilmington, Delaware. Jerome M. Capone, Esquire, Wilmington, Delaware. ABLEMAN, JUDGE

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I. Introduction

Before the Court is Defendant Michael Jones’ (“Jones”) First Motion

for Postconviction Relief following his conviction on January 27, 2005 of

three counts of Murder in the First Degree, one count of Robbery in the First

Degree, one count of Arson in the Second Degree, and related weapons and

conspiracy charges. On the murder charges, Jones was sentenced to three

life sentences without the possibility of parole or any other sentence

reduction. The Supreme Court ultimately affirmed his convictions and

sentences.1

In his motion, Jones raises six substantive grounds for relief.

Specifically, he argues that: (1) his arrest was illegal; (2) his right to a

speedy trial was violated; (3) his Brady rights were violated;2 (4) the trial

judge abused her discretion with various rulings; (5) the prosecutor engaged

in misconduct; and (6) his counsel was ineffective. Jones asks that his

convictions be vacated, that his sentences be overturned, and that he receive

a new trial with new counsel. Jones, who has filed the instant motion pro se

also asks that counsel be appointed to assist him and that an evidentiary

hearing be held to address the merits of his motion.

1 Jones v. State, 940 A.2d 1 (Del. 2007). 2 Brady v. Maryland, 373 U.S. 83 (1963).

The Court has considered the lengthy motion3 filed by Jones, as well

as counsels’ responses. After reviewing the record, the Court concludes that

all of Jones’ claims are either procedurally barred or lack merit. For the

reasons set forth more fully hereafter, Defendant’s motion for postconviction

relief is denied.

II. Statement of Facts

A. Factual Background

Michael Jones, also known as “Gotti,” and Darrel Page (“Page”), also

known as “Quazzi,” were members of a drug ring in Wilmington Delaware.4

Cedric Reinford (“Reinford”), also known as “Dreds,” led the operation.

On the evening of November 20, 1999, Jones, Page, and Reinford

were together in Reinford’s car in Wilmington. At that time, Jones, born

March 14, 1982, was 17 years, 8 months old. The evidence at trial

established that Jones killed Reinford by shooting him three times in the

head while the three men were in Reinford’s car. Page and Jones then

covered Reinford and his car with gasoline and set it afire. Afterwards, both

Jones and Page went to Reinford’s house to steal drug money. There, Jones

shot and killed Reinford’s fiancée, Maneeka Plant (“Plant”), while she was 3 Jones’ motion for postconviction relief was one-hundred-and-twelve pages long, not including the supplements and amendments he later added. 4 These facts are taken from the Supreme Court’s decision affirming Jones’ convictions and sentences. See Jones v. State, 940 A.2d 1 (Del. 2007).

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in bed with her six-week old infant. Jones then shot Reinford’s brother,

Muhammad Reinford (“Muhammad”), in the face. Muhammad survived

and called the police at 3:20 a.m. on November 21, 1999.

While in the hospital on that date, Muhammad identified Page and

Jones from a photo lineup and described what had happened to the police.

The subsequent investigation led the police to question Kim Still (“Still”),

Page’s girlfriend. At the Wilmington Police Station, Still told the police that

Page planned to kill Reinford and recruited Jones to help him. She also

explained the circumstances surrounding her decision to drive to

Philadelphia to pick up a car borrowed by Page and Jones and her meeting

with the two men afterwards, as well as Page’s statements to Still after

police contacted her by telephone and told her to return to Wilmington for

questioning. In all, Still’s interrogation lasted sixteen hours. The last five

hours of her interrogation were videotaped.

Police arrested Page on November 3, 2000. A grand jury then

indicted Page and Jones on January 29, 2001.5 Jones was arrested on

September 11, 2001 in North Carolina and extradited to Delaware on

October 29, 2001.

5 The Court severed Page’s trial from Jones’ trial because Page’s defense was that Jones forced him to commit the murders at gunpoint. Page, 934 A.2d at 895 n.9. Ultimately, on June 12, 2003 Page was convicted of three counts of Murder First Degree, one count of Attempted Murder First Degree and related weapons and conspiracy charges. Id. at 895.

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B. The Guilt Phase

Jones’ trial was originally scheduled to begin on November 12, 2002.

At the proof positive hearing on January 25, 2002, the State notified the

Court and Jones that it intended to seek the death penalty. After a court-

ordered stay of all capital murder cases, Jones’ trial was rescheduled for

November 24, 2003.6

Shortly before trial, Jones filed a motion to obtain new counsel, which

was granted on November 17, 2003. In April 2004, Jones sought to preclude

the State from seeking the death penalty because he was under the age of

eighteen at the time of the murders. On August 31, 2004, the trial judge

denied this motion based on the doctrine of stare decisis and the United

States Supreme Court’s precedent at the time.7 Jones’ trial then began on

January 11, 2005.

6 As explained infra, the stay was precipitated by the decision from the United States Supreme Court in Ring v. Arizona, 536 U.S. 584 (2002) and its effect on all capital cases. 7 The Delaware Supreme Court explained:

The trial judge “expressed willingness to delay the trial until after a decision in Roper [State ex rel. Simmons v. Roper, 112 S.W.3d 397 (Mo. 2003)] so that the State could avoid the expense of preparing for a penalty phase that might later prove to be meaningless, and so Jones could avoid being tried by a death qualified jury.” State v. Jones, 2005 WL 950122, at *2 (Del. Super.). Through his counsel, Jones rejected this option. Id. On March 1, 2005, the U.S. Supreme Court found the juvenile death penalty irreconcilable with its “evolving standards of decency” interpretation of the Eighth Amendment and thereby deemed it unconstitutional. Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

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During jury selection, the State used six of its eight peremptory

challenges to remove members of minority groups from the jury. In

response to objections by Jones, the prosecutor explained his reasons for the

challenges, which the trial judge found to be race neutral.8 On January 27,

2005, the jury found Jones guilty of three counts of Murder in the First

Degree, one count of Robbery in the First Degree, one count of Arson in the

Second Degree, and other related weapons and conspiracy charges.

C. The Penalty Phase

Following the jury’s verdicts of guilty, the Court began the penalty

phase to determine whether Jones should be sentenced to life imprisonment

or death. The jury recommended the death penalty for Jones by a vote of

eleven-to-one on two of the Murder First Degree counts and ten-to-two on

the third Murder First Degree count. After the penalty phase, but prior to

sentencing, the United States Supreme Court decided Roper v. Simmons,9

wherein it held that imposition of death penalty for juveniles was

unconstitutional. Jones was thereby ineligible for the death penalty due to

his young age at the time he committed the crimes. After Simmons was

decided, but before sentencing, counsel for Jones filed motions for the trial Jones, 940 A.2d at 6 n.4. 8 State v. Jones, 2007 WL 2142917 (Del. Super. Ct. Jul. 3, 2007). 9 543 U.S. 551 (2005).

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judge’s recusal and for a new trial. In a lengthy opinion, the trial judge

denied these motions. Jones was later sentenced to life imprisonment for his

murder convictions.10

D. Jones’ Appeal

Jones filed a timely appeal of his sentences and convictions to the

Delaware Supreme Court. In that appeal, he raised eight points of error.

One of his arguments, that the prosecutor improperly exercised peremptory

challenges to strike jury panel members, resulted in the Delaware Supreme

Court remanding the case to the Superior Court to evaluate all of the

evidence and determine whether Jones met the burden of persuasion

mandated by Batson v. Kentucky.11

On remand, the Superior Court conducted an evidentiary hearing to

determine whether the prosecutor violated Batson. After conducting that

hearing, the Court concluded that Jones had failed to meet his burden of

establishing that the prosecutor exercised his peremptory challenges in a

racially discriminatory manner.12 As a result, the judge found that Batson

had not been violated and returned the case to the Delaware Supreme Court.

10 State v. Jones, 2005 WL 950122, at *5 (Del. Super. Ct. Apr. 10, 2005), reargument denied, 2005 WL 950121 (Del. Super. Ct. Apr. 15, 2005). 11 Jones v. State, 938 A.2d 626 (Del. 2007) (citing Batson v. Kentucky, 476 U.S. 79 (1986)). 12 State v. Jones, 2007 WL 2142917 (Del. Super. Ct. Jul. 3, 2007).

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On appeal, the Delaware Supreme Court again considered Jones’

arguments. The Delaware Supreme Court concluded that: (1) the prosecutor

did not improperly exercise his peremptory challenges in a racially

discriminatory manner in violation of Batson v. Kentucky;13 (2) the trial

judge did not abuse her discretion when she admitted statements made by

Still to police under 11 Del. C. § 3507 (“§ 3507”) regarding Page’s intent to

kill Reinford and Page’s comments that Jones was “da man” for killing

Reinford;14 (3) the admission of the § 3507 statements did not violate Jones’

Sixth Amendment right to confront witnesses;15 (4) the trial judge did not

abuse her discretion when she allowed the State to introduce the actual

videotaped testimony of Still into evidence;16 (5) the trial judge did not

abuse her discretion when she declined to sequester Muhammad Reinford

and Still during the police officer’s testimony about Still’s statements;17 (6)

the trial judge did not abuse her discretion when she limited questioning of a

13 Jones v. State, 940 A.2d 1, 9 (Del. 2007). 14 Id. at 10. 15 Id. at 12-13. The Sixth Amendment of the U.S. Constitution states, in pertinent part, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. 16 Id. at 14. 17 Id. at 15.

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police officer regarding bias of Muhammad Reinford because it was not

relevant to any bias of the officer;18 (7) the trial judge did not abuse her

discretion when she initially limited cross-examination of Yolanda Lum over

a certain subject matter because Jones ultimately had the opportunity to

cross-examine her about the subject matter without limitation;19 (8) the trial

judge did not abuse her discretion when she admitted photographs of

Reinford’s car and charred body;20 (9) the trial judge did not abuse her

discretion, nor was there any error, when she denied Jones’ motion to

recuse;21 and (10) the trial judge did not abuse her discretion when she

denied Jones’ motion for a new trial.22 Accordingly, the Delaware Supreme

affirmed Jones’ convictions and upheld Jones’ three sentences of life

imprisonment as well as those on the remaining convictions.

III. Defendant’s Contentions

In his Motion for Postconviction Relief, Jones raises six arguments,

each of which will be discussed separately below.

A. Illegal Arrest

18 Id. at 16. 19 Jones, 940 A.2d at 17. 20 Id. 21 Id. at 18-19. 22 Id. at 19-20.

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Jones’ first claim is that his arrest was illegal. He argues that the

affidavit which supported the warrant for his arrest contained numerous

intentionally and willfully false statements by the police. He claims that the

police fabricated events concerning an alleged photo line-up and statements

made by Reinford while hospitalized after the shooting. For example,

according to Muhammad’s medical report on November 21, 1999, he was

intubated. As a result, Jones claims that it would have been physically

impossible for him to give a statement to the Wilmington Police, and the

affidavit for probable cause is therefore erroneous in that it states that

Muhammad selected Jones’ photograph from a photo line-up and identified

Jones as the shooter.23 Jones requests a Franks hearing to address these

claims.24

Jones also argues that Muhammad Reinford’s identification of him

was insufficient to establish probable cause. In support of this claim, he

contends that Muhammad admitted that he had smoked marijuana just

before he identified Jones in a photo line-up. Moreover, Jones seizes on the

23 Docket 225, Ex. A (Affidavit of Probable Cause). 24 In Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme Court held that a defendant may be entitled to hearing where there are sufficient allegations that the affidavit for probable cause supporting a warrant contained intentionally false statements or statements made with a reckless disregard for the truth. Id. at 171-72.

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fact that Muhammad did not recognize him before he was shot in the face

and that the house was dark at the time of the shooting.

In his next argument, Jones points to Still’s references to two other

possible suspects named “Shane” and “O” and submits that these create

reasonable doubt as to whether Jones in fact committed the murders. He

also argues that probable cause to arrest him could not have been based upon

statements Still gave to police because she assumed Jones was associated

with Page.

Jones next identifies inconsistencies in statements made by Detective

Cunningham, who signed the Affidavit of Probable Cause. For example,

Detective Cunningham reported to Captain Andrew J. Brady of the

Wilmington Fire Department that Muhammad told him that Page was the

shooter at the time the police found Reinford’s burnt body.25 Later at trial,

however, Cunningham testified that Jones was the shooter. He suggests that

these inconsistencies amount to perjury, requiring reversal.

B. Speedy Trial Violation

Jones’ second contention in this postconviction motion is that his right

to a speedy trial guaranteed by the Sixth Amendment to the United States

25 Docket 225 (Defendant’s Motion for Postconviction Relief), Ex. D (Wilmington Fire Department Case Summary).

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Constitution and the Delaware Constitution was violated.26 He argues that

the delay of forty months between his arrest and trial is presumptively

prejudicial. He submits that the circumstances leading to the delays -- (1)

the temporary stay of all capital cases during the pendency of his trial; (2)

the trial judge’s refusal to appoint new counsel for Jones; (3) the trial judge’s

denial of his motions for a speedy trial; (4) his counsel’s attempt to withdraw

from representing him after the Chief of Legal Services called him a

“murderer”; (5) the appointment of new counsel on Jones’ behalf; and (6)

numerous continuances by the Court and the prosecution -- all impaired his

defense. Moreover, he asserts that his confinement during this time was

oppressive, as he was illegally housed in a maximum-security prison and

suffered mentally as a result. He argues that the delay further impaired his

ability to subpoena Desiree Harper as an alibi witness. Relying on Barker v.

Wingo,27 he contends that his indictment must be dismissed.

C. Brady Violation

Jones’ third basis for relief is that his convictions violated his due

process rights since the State purposely suppressed evidence favorable to 26 See U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,. . . .”); Del. Const. art. I, § 7 (“In all criminal prosecutions, the accused hath a right to . . . a speedy and public trial by an impartial jury;. . . .”). 27 407 U.S. 514 (1972).

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him, in violation of Brady v. Maryland.28 Specifically, he claims that the

State videotaped only five hours of Still’s testimony, even though she was

interrogated for sixteen hours. He also notes that, at Page’s trial, Still

testified that she was threatened by police during her interview.29 In

essence, Jones maintains that Still made a “false confession” implicating

him. Since the videotaped interview of Still in evidence at trial did not

include any dialogue showing any threatening behavior by the police, Jones

submits that the State must have suppressed evidence favorable to him.

D. Abuse of Discretion

As a fourth basis for relief, Jones submits that the trial judge abused

her discretion in various ways. First, he contends that the trial judge abused

her discretion under D.R.E. 403(b) when she admitted certain statements by

Still: (1) statements Page allegedly made to Still while planning the crimes;

(2) statements Page made after the murders to Still while Still assisted both

his escape; and (3) statements that Still was afraid of Page. He also argues

that it was an abuse of discretion for the trial judge to find that Still

voluntarily gave her statement to the police, given that she testified at Page’s

trial that she was threatened.

28 373 U.S. 83 (1963). 29 Docket 225, Ex. E (State v. Page Tr. Trans.), at 21-26.

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Jones next argues that it was an abuse of discretion for the Court to

have precluded Jones from cross-examining Detective Gary Taylor about the

circumstances of his out-of-court interview with Muhammad, and it was

error to permit Muhammad to remain in the courtroom during Taylor’s

testimony. This inquiry was relevant, Jones argues, because he was thereby

prevented from determining whether Muhammad was offered a plea

agreement to testify against Jones in exchange for the State agreeing not to

charge him with a criminal offense.

Jones contends that the trial judge further abused her discretion when

she denied Jones’ request to admit transcripts of the videotaped testimony

and then reversed her decision and admitted them with a limiting instruction.

Similarly, he maintains that she abused her discretion when she limited the

cross-examination of Yolanda Lum by disallowing questioning about any

pending charges against her.

E. Prosecutorial Misconduct

Jones next argues that his convictions should be reversed because of

prosecutorial misconduct. He argues that prosecutors knowingly presented

the perjured testimony of Kim Still, Lynn Raikes, Muhammad Reinford,

Yolanda Lum, and Geralyn Holmes. Jones bases this argument on the

inconsistencies between testimony at Page’s trial, which occurred before

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Jones’ trial, and testimony offered at Jones’ trial. He gives as an example

that, although Still testified that Page had Reinford’s brown paper bag of

drug money at Page’s trial when she met Page and Jones in Philadelphia, she

later testified at Jones’ trial that Jones had possession of Reinford’s plastic

drug money bag.30 Since these are instances where Still’s testimony was not

identical to her testimony in Page’s trial, Jones contends that Still was

coerced to testify against him. He notes that the prosecutors in his trial were

the same prosecutors in both trials so that they knew of the perjury. Jones

relies upon Napue v. People of the State of Illinois31 which he claims,

established that the prosecutors’ decision to let the witnesses testify

inconsistently demonstrates prosecutorial misconduct.

Jones further contends that the prosecutors engaged in misconduct by

misleading the jury in their closing arguments and stating facts that

prosecutors knew were false. Specifically, because Page was only found

guilty of attempted robbery and not robbery, he argues that the prosecutors’

statement that Jones and Page engaged in a robbery was false. He also

points to other facts mentioned by the prosecutor that, while inferred from

30 Id. at 52-53. 31 360 U.S. 264 (1959).

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testimony given, were not actually offered at trial.32 He contends that the

prosecutors’ argument that “memories fade” when discussing the

inconsistencies in testimony, especially that of Muhammad, demonstrates a

“malicious intent . . . to cover-up perjured testimony.”33 Since the

prosecutors offered theories to establish Jones’ guilt without offering

evidence for each inference, Jones contends that the prosecutors engaged in

misconduct in violation of Hughes v. State.34

F. Ineffective Assistance of Counsel

In his final, and only argument that could not have been raised in his

direct appeal, Jones contends that he received ineffective assistance of

counsel. Specifically, he submits that his attorneys’ counsel was deficient in

the following respects: (1) counsels’ failure to challenge his arrest warrant;

(2) their failure to object to the voluntariness of Still’s § 3507 statement; (3)

their failure to object to the perjured testimony offered at trial by various

witnesses; (4) their failure to object to the testimony of Geralyn Holmes on

the grounds of relevancy and prejudice; (5) their failure to call Jones’ alibi

witness, Desiree Harper; (6) their failure to call doctors that cared for

32 For example, Jones complains that the prosecutor argued that Jones fired three bullets in Reinford’s body, even though no witness testified to observing him fire the gun. 33 Docket 225, at 91. 34 437 A.2d 559 (Del. 1981).

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Muhammad while he was in the hospital; (7) their failure to interview Still

and Muhammad; (8) their failure to request that the trial judge recuse

herself;35 and (9) their failure to raise his claim of a speedy trial violation in

his direct appeal.36 According to Jones, these errors caused him prejudice

under Strickland v. Washington.37 He also submits that his attorneys’

decision to refrain from challenging the warrant was objectively

unreasonable since Jones had expressly asked counsel to object.

IV. Counsels’ Responses

In response, Jones’ attorneys deny all of Jones’ allegations.38

Specifically, in their affidavits, they put forth the following explanations:

(1) There was no basis to challenge Jones’ arrest warrant because the

State had sufficient evidence to proceed with a capital case against him, as

35 In his motion, Jones claimed that he received ineffective assistance of counsel because his attorneys failed to request that the trial judge recuse herself. Contrary to Jones’ claim, Jones’ counsel: (1) filed a motion asking the trial judge to recuse herself and seeking a new trial; (2) filed a motion for reargument; and (3) sought reversal of Jones’ convictions on appeal on the grounds that the trial judge denied Jones’ request for recusal and for a new trial. See State v. Jones, 2005 WL 950122 (Del. Super. Ct. Apr. 10, 2005) (denying defendant’s motion to recuse); State v. Jones, 2005 WL 950121 (Del. Super. Ct. Apr. 15, 2005) (denying defendant’s motion for reargument); Jones v. State, 940 A.2d 1, 19-20 (Del. 2007). Because Jones’ allegation is factually incorrect, the Court did not request counsel to respond to this allegation and will not address it herein. 36 Jones raised this final claim in an amendment to his motion. See Docket 230. 37 446 U.S. 668 (1984). 38 Jones’ attorneys, Jerry M. Capone, Esq., and Kevin J. O’Connell, Esq., filed separate affidavits in response to Jones’ allegations. The Court will address both affidavits together and refer to the attorneys collectively as “counsel.”

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determined by the Grand Jury and by the Court following a proof positive

hearing. Moreover, counsel state that it was physically possible for

Muhammad to have given the statements which were offered in the affidavit

of probable cause as he did speak to the police from his hospital bed, which

was videotaped and presented into evidence. Regarding their failure to file a

suppression motion, counsel submit that there was no need to do so because

police did not seize any evidence from Jones. They note that any

inconsistencies in Muhammad’s testimony were explained to the jury during

trial.

(2) Counsel made the strategic decision not to challenge the

voluntariness of Still’s § 3507 statement because her live testimony was

more damaging to her credibility since she kept changing her story. As a

result, it was to Jones’ benefit to play Still’s taped interview before the jury.

Moreover, after reviewing her § 3507 statement prior to trial, counsel

believed that Still testified voluntarily and that playing the statement for the

jury would aid in their cross-examination of her. Similarly, counsel could

find no evidence that Still’s will was overborne, despite mildly coercive

tactics used to obtain Still’s cooperation. Counsel note, however, that they

did file a motion to exclude parts of her § 3507 statement that they felt were

unduly prejudicial.

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(3) Counsel cross-examined each witness, including Geralyn Holmes,

to the best of their ability. They note that they objected when they felt it was

legally justified and strategically appropriate. Moreover, counsel point out

that their duty as competent advocates was not to object on the basis of

perjured testimony but to convince the jury that the testimony was unreliable

and untrustworthy.

(4) Counsel decided not to call Jones’ alibi witness because she was

not credible. Since Jones was not arrested until long after his indictment, the

witness he named was unable to offer any specific recollection of the events

of November 21, 1999. In contrast, the witnesses for the State had their

recollections memorialized or taped soon after the crimes. Counsel therefore

determined that the alibi witness would only serve to prejudice Jones.

(5) Defense attorneys subpoenaed Muhammad’s medical records,

which indicated that he was lucid and alert when questioned by police.

Although counsel introduced portions of those records, which confirmed that

Muhammad was taking medication during the interviews, they chose not to

call any medical personnel because they believed that the witnesses would

testify that Muhammad was credible, thereby bolstering, rather than

impeaching, his testimony.

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(6) Counsel did not object to certain statements made by the

prosecutors in closing arguments because they were neither legally nor

strategically justified in doing so. Counsel contend that the prosecutors

made no improper inferences which would justify objection.

(7) Although the defense attempted to interview Muhammad and Still,

both were hostile to Jones. In support of these claims, counsel have

provided billing statements demonstrating their efforts.39

(8) Defense counsel recognized Jones’ speedy trial claim and, in fact,

spent an extensive amount of time researching it. Ultimately, however,

counsel decided to forego raising a speedy trial violation claim on appeal for

two reasons: (1) much of the delay between Jones’ indictment and his trial

was not the fault of the State, making any speedy trial claim likely to be

unmeritorious; and (2) raising the claim would “water down” the meritorious

arguments raised on appeal.

V. Legal Standard

Prior to addressing the substantive merits of any claim for

postconviction relief, the Court must first determine whether the defendant

has met the procedural requirements of Superior Court Criminal Rule 61

39 Docket 232 (Affidavit in Response to Defendant’s Rule 61 Motion), Ex.

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(“Rule 61”).40 If the procedural requirements of Rule 61 are not met, in

order to protect the integrity of the procedural rules, the Court should not

consider the merits of a postconviction claim.41

Rule 61(i) imposes four procedural imperatives: (1) the motion must

be filed within one year of a final order of conviction;42 (2) any basis for

relief must have been asserted previously in any prior postconviction

proceeding; (3) any basis for relief must have been asserted at trial or on

direct appeal as required by the court rules unless the movant shows

prejudice to his rights or cause for relief; and (4) any basis for relief must not

have been formerly adjudicated in any proceeding. The bars to relief under

(1), (2), and (3), however, do not apply “to a claim that the court lacked

jurisdiction or to a colorable claim that there was a miscarriage of justice

because of a constitutional violation that undermined the fundamental

legality, reliability, integrity or fairness of the proceedings leading to the

40 Younger v. State, 580 A.2d 552, 554 (Del. 1990). See also Bailey v. State, 588 A.2d 1121, 1127 (Del. Super. Ct. 1991). 41 State v. Gattis, 1995 WL 790961, at *2 (Del. Super. Ct. Dec. 28, 1995) (citing Younger, 580 A.2d at 554), aff’d, 697 A.2d 1174 (Del. 1997), cert. denied, 522 U.S. 1124 (1998). 42 If the final order of conviction occurred before July 1, 2005, the motion must be filed within three years. If the final order of conviction occurred on or after July 1, 2005, however, the motion must be filed within one year. See Super. Ct. Crim. R. 61(i)(1) (July 1, 2005) (amending Super. Ct. Crim. R. 61(i)(1) (May 1, 1996)).

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judgment of conviction.”43 Moreover, the procedural bars of (2) and (4)

may be overcome if “reconsideration of the claim is warranted in the interest

of justice.”44

VI. Analysis

The Court first notes that Jones has timely filed his postconviction

motion,45 and since this is Jones’ first postconviction motion, none of his

claims are repetitive and subject to dismissal on that basis.46 The Court

concludes, however, that many of Jones’ claims are procedurally barred

under Rules 61(i)(3) and 61(i)(4), as explained infra. For the sake of clarity,

the Court will address each of his arguments individually.

A. Illegal Arrest

Jones first claims that his arrest was illegal. This claim is

procedurally barred by Rule 61(i)(3) because he did not raise this issue in his

direct appeal to the Supreme Court.47 Thus, the Court can only consider this

43 Super. Ct. Crim. R. 61(i)(5). 44 Id. R. 61(i)(4). 45 The Supreme Court mandate affirming Jones’ convictions and sentenced was issued January 3, 2008. Docket 220. Jones filed this motion on May 21, 2008, within one year of the time his convictions became final. See Super. Ct. Crim. R. 61(i)(1). 46 See Super. Ct. Crim. R. 61(i)(2). 47 Id. R. 61(i)(3).

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claim if he has demonstrated a miscarriage of justice or that reconsideration

is warranted in the interest of justice.

Jones has failed to establish that a miscarriage of justice occurred or

that this Court should reconsider these issues that he waived in the interest of

justice. Not only did the Grand Jury conclude that there was sufficient

evidence to charge Jones, but the Court reached the same conclusion

following a proof positive hearing. Counsel also agreed that there was no

basis to challenge the arrest warrant or the affidavit offered in support of the

warrant because Muhammad physically could have, and in fact did, give a

statement implicating Jones in the murders at the hospital. Notably, despite

the possibility that Jones may not have been the murderer at the time the

police submitted an affidavit of probable cause, the police were not required

to know for sure that Jones was the murderer. They only needed sufficient

information that would persuade a reasonable man that a crime has been, is

being, or will be committed.48 The Court also notes that Jones’ former

counsel testified that there was no need for a Franks hearing.49 Here, the

48 Tolson v. State, 900 A.2d 639, 642-43 (Del. 2006) (citations omitted). 49 On September 26, 2003, the Court heard Jones’ motion to dismiss his attorney. At that hearing, the issue of whether a Franks hearing was needed arose. His attorney explicitly stated that he did not believe there was a basis to request a Franks hearing, even though the State had explicitly informed defense counsel to discuss the issue with Jones. See Docket 225, Ex. H (Hearing Tr. of Def.’s Mot. to Dismiss Counsel, Sept. 26, 2003, at 15:4-19).

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police had sufficient evidence to believe that Jones was the murderer, as

confirmed by the grand jury and by the Court at the proof positive hearing.

Jones’ claim of an illegal arrest is therefore unavailing.

B. Speedy Trial Violation

Jones’ second argument in this motion is that his right to a speedy trial

was violated. Since Jones failed to raise this Constitutional issue on direct

appeal, he is procedurally barred from raising it in this collateral

proceeding.50 Unless Jones can demonstrate cause or prejudice, the Court

will not consider this claim.51

In this case, Jones filed a motion to address his speedy trial claim

during his incarceration before trial. He also informed his attorneys that he

wanted the issue raised on his appeal. Counsel concluded that this claim

was not likely to be meritorious, and made a strategic and legal decision not

raise it on appeal.52 Notwithstanding this tactic, since Jones has

50 Id. R. 61(i)(3); State v. Hassan-El, 2008 WL 3271229, at *3 (Del. Super. Ct. Jul. 31, 2008) (“Because the Defendant failed to raise these Constitutional issues on his direct appeal, they are procedurally barred and the Court need not address them unless cause and prejudice is shown by the Defendant.”). 51 Hassan-El, 2008 WL 3271229 at *3 (citing Super. Ct. Crim. R. 61(i)(3)). 52 Although the Court will address Jones’ ineffective assistance of counsel claims infra, the Court briefly notes that the strategic decision to waive an argument on appeal that his attorneys felt lacked merit and to focus on other arguments does not per se establish ineffective assistance of counsel. Rather, it is the hallmark of a good attorney to refuse to submit unmeritorious claims on appeal and pursue those claims that, in good faith, the

24

demonstrated cause for why this claim was not raised, the Court will address

this argument on the merits.

In order to appreciate the Court’s analysis, a timeline of this case is

necessary. Jones was indicted on January 29, 2001. Because he fled

Delaware, he was not arrested until September 11, 2001. At an office

conference on November 21, 2001, the Court scheduled trial for November

12, 2002. On December 6, 2001, Jones then filed a motion to have a new

attorney appointed on his behalf. The motion was denied on January 31,

2002.

In the meantime, the United States Supreme Court rendered its

decision in Ring v. Arizona,53 which had a direct effect on Delaware’s death

penalty statute. As a result, on June 24, 2002, the Delaware General

attorney believes have merit. As explained in State v. Tatum, 2008 WL 2601390, at *2 (Del. Super. Ct. Jun. 27, 2008):

Simply because the Defendant does not like counsel’s strategy or trial tactics does not render counsel’s conduct unreasonable. . . . Counsel’s conduct certainly qualifies as reasonable, especially in light of his duty to the Court not to file frivolous motions. Litigation decisions of this nature are within the province of counsel to decide and a defendant’s disagreement with that decision does not provide a basis for the Court to second guess counsel.

53 536 U.S. 584 (2002).

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Assembly amended the law defining the procedure for capital cases, and the

legislation was signed by the Governor on July 22, 2002.54

These significant developments in first degree murder jurisprudence

created new legal issues, requiring the Superior Court to certify sixteen

questions of law to the Delaware Supreme Court.55 The Superior Court then

immediately issued a temporary stay of all capital cases, effective September

10, 2002, pending the Supreme Court’s decision on the certified questions.56

Once the Delaware Supreme Court issued a decision in Brice v. State,57

wherein it resolved the certified questions, the Superior Court lifted the

temporary stay of all capital cases on January 27, 2003. During this time

period, Jones had asserted his right to a speedy trial in a motion on October

22, 2002, which was denied by the Court on January 7, 2003 due to the

pending stay. Trial in this case was scheduled for May 19, 2003, after the

stay was lifted.

The Court then held a hearing on Jones’ motion to dismiss his

attorney and appoint new counsel. The motion was denied. At the State’s

request, trial had to be rescheduled again for November 24, 2003 because 54 73 Del. Laws ch. 423 (2002). 55 See Brice v. State, 815 A.2d 314 (Del. 2003). 56 Page, 934 A.2d at 895. 57 815 A.2d 314 (Del. 2003).

26

the prosecutor was to be on maternity leave. On November 12, 2003,

however, Jones requested a continuance because of an overheard statement

made by the Chief of Legal Services to the effect that Jones was a

“murderer”.58 Of particular note, the Court informed Jones’ counsel that his

request for a new attorney would mean that he would be waiving his speedy

trial right:

The Court: The point is, I want him to know that he doesn’t want you as his attorneys, now, that’s going to delay this for him because, I mean, what that does is that basically absolutely forces me to continue this case. There’s no lawyer in the world that I would require to be prepared [with one week’s notice]. . . . So, he wants a speedy trial and he wants new lawyers. He’s always wanted both. . . . But if that’s the case, he’s going to have to understand that he’s waiving his speedy-trial rights. Otherwise, he’s going to trial with you folks.59 . . . The Court: But I will let you [Jones] know that if – if I have to let them [counsel] withdraw, I have to bounce the entire Public Defender’s Office out of this, which means I’ve got to appoint someone else. And there is no lawyer that’s worth his or her salt who would be willing to take a capital murder case . . . . If I have to appoint new counsel, I would have to give – I will have to continue this case for another date. There is no way we can go to trial on November 24. So, you need to understand that you can’t have your speedy trial date and insist on one 11/24, 2003, as the date of jury selection, and, also, vehemently oppose having these attorneys represent you. Do you understand that?

58 Id., Ex. H (Hearing Tr. of Office Conference, Nov. 12, 2003). 59 Id., Ex. H, at 5:10-6:14.

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Jones: Yeah, I understand.60

After agreeing to appoint Jones new counsel, the Court further explained its

basis for continuing the case:

The Court: But here are my concerns, Mr. Jones, so you understand. I know that you want to get his over with, and I know that you have asserted all along your speedy-trial rights. I cannot appoint a new attorney, as I indicated before, for you and expect that person to give effective assistance of counsel between in [sic] you and Thanksgiving.61 . . . The Court: I went through several reasons. One was the holidays and the other was that now, of course, your counsel have been granted leave to withdraw. But they were not prepared to go forward on the 24th. And the reason they were not prepared to go forward on the 24th was because you were not cooperating and you were forcing them to jump through hoops in order to find people that would testify favorably for you in a mitigation case. Now, that’s not fair to them. But I was going to have give them a continuance under any circumstances.62

The Court then appointed Kevin J. O’Connell, Esquire, and Jerome

M. Capone, Esquire (collectively, “counsel”), on behalf of Jones. On June

22, 2004, the Court held an office conference with counsel. At that time, the

Court expressed a willingness to defer decision on whether a death-qualified

60 Id., Ex. H, at 26:8-27:2. 61 Id.. Ex. H, at 36:16-21. 62 Id., Ex. H, at 40:14-23.

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jury was required in this case, as a result of the then pending United States

Supreme Court case of Roper v. Simmons.63 That decision would address

the constitutionality of the juvenile death penalty.64 Counsel chose to move

forward and urged the Court to proceed on Jones’ motion to preclude the

death penalty, noting that he would waive any speedy trial violation claim.65

On August 31, 2004, this Court upheld the juvenile death penalty on stare

decisis grounds.66 Jones’ trial finally began on January 11, 2005. At that

time, a decision in the Simmons case had not yet been filed by the U.S.

Supreme Court.

The Court evaluates a claim of a violation of a defendant’s Sixth

Amendment right to a speedy trial under the four-factor test established by

the United States Supreme Court in Barker v. Wingo.67 The right to a

speedy trial attaches once a defendant is accused of a crime, through his

arrest or indictment, whichever occurs first.68 The four factors are: (1) the

length of the delay; (2) the reason for the delay; (3) the defendant’s assertion 63 543 U.S. 551 (2005). 64 Jones was seventeen years of age at the time of the murders. 65 See Docket 225, Ex. H (Hearing Tr. of Office Conference, Jun. 22, 2004, at 12). 66 See State v. Jones, 2005 WL 950122 (Del. Super. Ct. Apr. 10, 2005). 67 407 U.S. 514 (1972). The Delaware Supreme Court adopted the Barker analysis in Johnson v. State, 305 A.2d 622, 623 (Del. 1973). 68 Middlebrook v. State, 802 A.2d 268, 273 (Del. 2002).

29

of his right to a speedy trial; and (4) the prejudice resulting to the defendant

from the delay.69 Each of these factors will be considered below.

(1) The Length of the Delay

Under this factor, no specific delay is automatically prejudicial. The

Court must therefore analyze the particular circumstances of each case.70 In

this case, Jones was indicted on January 29, 2001 and arrested on September

11, 2001. He was not tried until January 11, 2005, nearly four years after his

indictment and nearly three-and-a-half years after his arrest. While most

capital cases should be tried within one year of indictment, the courts are

given flexibility in the interest of justice.71 Nonetheless, because the period

from Jones’ arrest to his trial exceeds the general one-year rule for holding

trials in Superior Court,72 the Court will consider the other Barker factors.73

69 Barker, 407 U.S. at 530-31. 70 Dabney v. State, __ A.2d __, 2008 WL 2169017, at *5 (Del. May 23, 2008) (citing Barker, 407 U.S. at 530-31). 71 Administrative Directive No. 131 states, in pertinent part:

All [capital] cases must be tried and/or otherwise adjudicated within one year from the date of the indictment. . . . Because of their complexity, capital cases occasionally may present unique problems that preclude a trial or other disposition within the one-year period. A judge therefore may depart from those guidelines when the interests of justice require.

72 See Dabney, 2008 WL 2169017 at *6 (discussing Supreme Court of Delaware Administrative Directive 130 (July 11, 2001)).

30

(2) The Reasons for the Delay

The second factor to consider -- the reason for delay -- weighs against

Jones. The nine-month period between Jones’ indictment and arrest was

entirely his own doing, as he fled from Delaware. Although trial was

initially scheduled for November 12, 2002, it was Jones who sought to have

new counsel appointed because of a disagreement with his public defender.

Thereafter, all capital cases, including Jones’ case, were stayed from

September 10, 2002 until January 31, 2003. This delay was not attributable

to any fault of the State, the Court, or Jones.

The State then sought to continue the trial to November 24, 2003

because the prosecutor was going out on maternity leave. Although the

January 31, 2003 to November 24, 2003 delay was attributable to the State,

Jones sought his own continuance during that time due to inappropriate

comments from the Chief of Legal Services. The Court granted Jones’

request to appoint new counsel, but made it clear to Jones that that would

necessitate continuing the trial in order to give new counsel adequate time to

prepare. The Court explained to Jones that he could not have both a new

73 Id. at *6 (“Because the trial delay in this case exceeded one year between arrest and incarceration to trial, we are compelled to find that the length of delay necessitates our consideration of the other Barker factors.”).

31

lawyer and an earlier trial date, and he in turn expressed his understanding of

the dilemma.

Substitute counsel recognized the delay between his arrest and trial

but made the deliberate choice to waive any speedy trial argument in order

to address the death-qualified jury issue. While the Court recognizes that

counsel could not waive the issue for Jones without his consent, the record is

clear that counsel repeatedly made the strategic decisions to seek

continuances in order to gather witnesses, conduct more research, and

become thoroughly prepared to try Jones’ case on January 11, 2005.

Although the delay in this case was considerable, it was a result of Jones’

request for new counsel and the need to have his attorneys adequately

prepare. The State informed the Court that it was ready to proceed to trial

on November 24, 2003.74 Although some of the delays are attributable to

the State, the bulk of the time before trial resulted from Jones’ request for

new counsel, the temporary stay of all capital cases, and the Court’s desire to 74 At the hearing to address Jones’ Motion to Appoint New Counsel, the prosecutor informed the Court:

Prosecutor: I just want the record to reflect that the State is prepared to go to trial to pick a jury on the 24th and start the case in December, knowing full well the findings your Honor has already made. The Court: All right. I understand that the State is prepared and has been prepared and wants to go forwards as soon as possible, as does Mr. Jones.

Docket 225, Ex. H (Hearing Tr. of Office Conference, Nov. 12, 2003, at 36:4-11).

32

ensure that Jones received a fair trial by affording his attorneys ample time

to prepare. Therefore, the Court finds that the reasons for the delay weigh

only slightly in Jones’ favor.75

(3) Defendant’s Assertion of the Speedy Trial Right

Turning next to the question of whether Jones timely and vigorously

asserted his speedy trial rights, the Court finds that Jones continually

asserted his speedy trial rights during the pendency of this case. Not only

did he file motions with the Court asserting this right, but during hearings,

he repeatedly informed the Court of his desire to go to trial. As a result, this

issue was preserved for appeal.

Despite Jones’ repeated invocation of his speedy trial rights, his

counsel did not raise the speedy trial issue on appeal. The defense explained

its decision to forego making the argument by noting that it was likely

unmeritorious and would divert attention from Jones’ other more persuasive

appellate arguments. Since the issue was not raised on appeal, Jones did not

75 See Barker, 407 U.S. at 531 (“Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.”). In Page v. State, the Supreme Court addressed a similar claim of a speedy trial violation and found that the reasons for the delay – the same reasons Jones identifies – weighed only slightly in favor of Page. See Page v. State, 934 A.2d 891, 897 (Del. 2007) (“There is no evidence in the record that the assignment of defense counsel and the trial scheduling was intended to hamper Page’s defense. On balance this factor weighs only slightly in Page’s favor, and less than it would had State’s actions been deliberate.”).

33

“timely and vigorously assert[] his right to a speedy trial[,]”76 and the Court

cannot consider it in this collateral proceeding.77 This factor therefore

weighs against Jones.

(4) Prejudice to Defendant

As a final consideration, the Court must consider whether the

defendant suffered any prejudice as a result of the delay. With regard to this

factor, the Court should consider three interests of the defendant that the

speedy trial right was designed to protect: (1) preventing oppressive pretrial

incarceration; (2) minimizing the anxiety and concern of the accused; and

(3) limiting the possibility that the defense will be impaired.78

The Court agrees with Jones that, with regard to the first factor, he

was prejudiced because pretrial incarceration is “inherently prejudicial.”79

He also wrote numerous letters to the Court and other personnel because of

76 Dabney, 2008 WL 2169017 at *8. The Barker Court also noted that “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Barker, 407 U.S. at 531. 77 Super. Ct. Crim. R. 61(i)(3); see also Hassan-El, 2008 WL 3271229 at *3 (“Because the Defendant failed to raise these Constitutional issues on his direct appeal, they are procedurally barred and the Court need not address them unless cause and prejudice is shown by the Defendant.”). 78 Dabney, 2008 WL 2169017 at *9. 79 Id.; see also Middlebrook, 802 A.2d at 276.

34

his solitary confinement.80 Indeed, Jones expressed constant anxiety and

concern throughout the process.

Aside from the inherent unfairness of confinement, however, Jones’

defense was not impaired as a result of the delay. As discussed earlier, most

of the delay between arrest and trial resulted from the Court’s desire to

ensure he had a fair trial. Indeed, the Court addressed Jones directly to

explain its reasoning for continuing the trial date, for the purpose of allowing

newly appointed attorneys to prepare an adequate defense. Although Jones

contends that he was prejudiced because he was unable to locate his alibi

witness, one Desiree Harper, the facts do not support his claim. Defense

counsel responded to this charge by stating that they did in fact

communicate with “Ms. Tina” or “Trina Williams”, the only person

identified by Jones as a prospective alibi witness, but she was unable to

remember anything about what occurred on the day of the murders. It was

for that reason that she was not called as a witness. For the first time in this

litigation, Jones now names Desiree Harper, but he apparently never told his

attorneys about her. Obviously, the more time that Jones is in prison, the

more opportunities he has had to fabricate witnesses. The Court notes that

he would most certainly have mentioned them to his attorneys if in fact they

80 Docket 225, Ex. I.

35

would have been able to provide testimony favorable to him. His failure to

do so leads the Court to conclude that they simply do not exist.

The Court recognizes that Jones’ incarceration made it more difficult

for him to prepare for trial, to meet with counsel, and to assist in gathering

evidence.81 He has failed to demonstrate, however, that he suffered any

actual impairment to his defense as a result of these delays. In Page v. State,

which addressed a speedy trial violation claim raised by Jones’ accomplice,

the Supreme Court found no prejudice, despite the defendant being

incarcerated for nearly two-and-a-half years before trial:

Page was incarcerated before trial for slightly more than two and half years. Over half of this time can be attributed to a stay of all capital cases. Page’s counsel was also counsel for Miles Brice in the certified questions appeal that addressed issues common to all capital cases, including Page’s. . . . The answers to the certified questions applied to all capital defendants awaiting trial. The practical effect of the temporary stay was that Page and all capital defendants were included in a class with common questions of law to be decided through the certified questions in Brice. Additionally, the record shows that Page’s defense was not impaired. Given the totality of the circumstances, we find no plain error and no denial of Page’s right to a speedy trial.82 Although Jones was prejudiced by the fact that he remained

incarcerated before trial, much of the “prejudice” resulted from decisions

attributable solely to him – namely, his request for new counsel – or from

81 Dabney, 2008 WL 2169017 at *9. 82 Page, 934 A.2d at 898.

36

actions beyond the control of the State or Court – namely, the temporary

stay of all capital cases. While the State did seek a continuance for a

personal issue, that continuance extended the case from May 19, 2003 to

November 24, 2003, a period of only six months. Jones’ request for new

counsel, however, necessitated a new trial date of January 11, 2005, a delay

of almost thirteen months. As a result, while the Court recognizes that Jones

was prejudiced by his lengthy incarceration, the fact that his defense was not

impaired and that the delay was not caused by either the State or the Court,

persuade the Court that, at best, this factor is neutral.

* * *

The Court concludes that Jones’ right to a speedy trial was not

violated in this case. While the length of the delay favors Jones, the reasons

for the delay are mostly attributable to Jones or to the constitutionally

mandated temporary stay, rather than to the State or to the Court. Moreover,

although Jones asserted his right to a speedy trial before the trial Court, he

never raised the issue on appeal, thereby depriving the Supreme Court of the

opportunity to address it in the first instance. Similarly, although

incarceration itself is inherently prejudicial, Jones has offered no specific

evidence or facts to show that his defense was impaired. To the contrary,

much of the delay assisted his defense attorneys by affording them adequate

37

time to prepare. Accordingly, the speedy trial violation claim does not

provide a basis for postconviction relief.

C. Brady Violation

Jones next argues that the State failed to turn over exculpatory

material in violation of Brady v. Maryland.83 Once again, the Court is

procedurally barred under Rule 61(i)(3) from considering this claim because

Jones failed to raise the argument on appeal. Unless he can demonstrate

prejudice or cause as required by Rules 61(i)(3)(A) or (B), this argument

cannot be considered.

Jones contends that the State refused to turn over twelve hours of

Still’s interrogation because it only offered a four-hour videotape at trial,

despite the fact that the interrogation took sixteen hours. While the State has

a duty to gather and preserve potentially exculpatory evidence on behalf of a

defendant,84 Jones has not shown that the duty was in any way violated. The

State’s obligation under Brady is to disclose evidence to a defendant if: (1)

the defendant requests the evidence but the State withholds it; (2) the

information is favorable to the defendant’s case; or (3) the evidence is

83 373 U.S. 83 (1963). 84 See Turner v. State, 894 A.2d 407, 2006 WL 453247, at *1 (Del. Feb. 24, 2006) (Table) (discussing Lolly v. State, 611 A.2d 956 (Del. 1992)).

38

material to the defendant’s guilt or punishment.85 Here, even assuming that

such a tape even existed, Jones has not established that either he or his

counsel ever requested that the State turn over a videotape with the

remaining twelve hours or that the State refused any such request.

Then too, Jones has failed to show that any of Still’s testimony,

offered or not, would have been exculpatory. In fact, her testimony at trial

directly pointed to Jones as the shooter. Although Jones seems to believe

that Still’s confession implicating him was false, he always had access to

Still’s testimony from Page’s trial and had ample opportunity to demonstrate

that Still was coerced. His own attorneys instead concluded that Still’s

statement was voluntary.86 Because Jones has not demonstrated that he

requested the information, or that the information was withheld, or that the

information was favorable to his case, he has failed to establish a Brady

violation warranting reconsideration in the interest of justice.

D. Abuse of Discretion

Jones next argues in his motion that the trial judge abused her

discretion on numerous occasions. All of these have been formerly 85 Cabrera v. State, 840 A.2d 1256 (Del. 2004) (citing Dawson v. State, 673 A.2d 1186, 1193 (Del. 1996)). 86 The Delaware Supreme Court explicitly noted that Jones failed to raise this issue on appeal. See Jones, 940 A.2d at 10 n.20 (“Jones does not take issue with whether or not Still’s statements were made voluntarily or otherwise did not meet the requirements of 11 Del. C. § 3507.”).

39

adjudicated by the Supreme Court who determined them to be without

merit.87 Specifically, the Supreme Court concluded that: (1) Still’s Section

3507 statement was properly admitted;88 (2) the videotape of Still’s

statement was properly admitted;89 (3) the trial judge did not abuse her

discretion when she refused to sequester witnesses;90 (4) the trial judge did

not abuse her discretion when she limited cross-examination of Yolanda

Lum and Officer DiNardo;91 and (5) the trial judge did not abuse her

discretion when she denied Jones’ motion to recuse and his motion for a new

trial.92 The Court will not rehash the arguments that the Supreme Court has

already considered and rejected. To the extent that Jones identifies new

examples of abuse of discretion, the claims are procedurally barred by Rule

61(i)(3) since they were not raised on his direct appeal.

E. Prosecutorial Misconduct

Jones’ fifth claim is that his convictions should be reversed because

the prosecutors knowingly placed perjured testimony before the jury, made

87 Super. Ct. Crim. R. 61(i)(4). 88 Jones, 940 A.2d at 13. 89 Id. at 13-14. 90 Id. at 15. 91 Id. at 16-17. 92 Id. at 19-20.

40

inappropriate references in their closing argument to the robbery that Page

and Jones allegedly committed, and inferred conclusions from the evidence

that were incorrect. To support his entitlement to relief, Jones relies upon

Napue v. People of the State of Illinois93 and Hughes v. State.94

Jones failed to raise any argument relating to prosecutorial

misconduct on appeal.95 Unless he can demonstrate that reconsideration is

warranted in the interest of justice or that a miscarriage of justice occurred,

the Court is precluded under Rule 61(i)(3) from considering this claim. The

“miscarriage of justice” exception is a “narrow one and has been applied

only in limited circumstances, such as when the right relied upon has been

recognized for the first time after a direct appeal.”96 Those limited

circumstances are inapplicable here.

Even assuming that Jones could meet the criteria for this exception,

his prosecutorial misconduct arguments are without merit. In Napue, upon

which Jones relies, the prosecutor had promised to assist a witness with his

own criminal status. Yet, at a different trial handled by the same prosecutor,

93 360 U.S. 264 (1959). 94 437 A.2d 559 (Del. 1981). 95 Super. Ct. Crim. R. 61(i)(3); see also Downes v. State, 771 A.2d 289, 292 (Del. 2001) (“A defendant who seeks a new trial under Rule 61 must understand, however, that his or her claim will be subject to all of the provisions of Rule 61, including the bars to relief.”). 96 Younger, 580 A.2d at 555 (citing Teague v. Lane, 489 U.S. 288, 297-98 (1989)).

41

the witness denied having been promised anything in return for his

testimony. The United States Supreme Court held that “a conviction

obtained through the use of false evidence, known to be such by

representatives of the State, must fall under the Fourteenth Amendment.”97

The Court set aside the conviction and held that the prosecutor had a duty to

correct any statement which he knew to be false.

Accepting the rationale of Napue in O’Neal v. State,98 the Delaware

Supreme Court held that “if the prosecutor actually knew that the testimony

he adduced . . . was false and perjury, and made no effort to correct it, he

would be, in our view, guilty of conduct unprofessional and censorable.”99

The Court was careful, however, to distinguish between a prosecutor’s

opinion that a witness is lying and actual knowledge of perjury, noting that a

prosecutor may use a witness’s testimony as previously told to the police,

regardless of his personal beliefs, so long as he does not have actual

knowledge to the contrary.100

Despite Jones’ allegations that the prosecutors in this case knew that

Still, Raikes, Muhammad, Lum, and Holmes all offered perjured testimony,

97 Napue, 307 U.S. at 269. 98 247 A.2d 207 (Del. 1968). 99 O’Neal, 247 A.2d at 210. 100 Id.

42

based on his perception of inconsistencies between their testimony at his and

Page’s trials, Jones has failed to offer any evidence that the prosecutors

actually knew that any of the witnesses were lying. In this regard, it is

important to note that mere inconsistencies that affect credibility do not per

se establish that the prosecutors engaged in misconduct. In O’Neal, for

example, appellants were charged and convicted of robbery of a liquor store

after Pruitt, an eyewitness, testified that they committed the robbery. Days

later, that same witness pleaded guilty to the assault and battery of the liquor

store owner. On appeal, the Supreme Court concluded that the witness’s

perjury did not require reversal of appellants’ convictions:

Pruitt’s subsequent plea affected only his credibility and his own complicity. At the trial, Pruitt identified the appellants as the robbers and, asserting that he was trying to help the victim, he denied complicity. The subsequent plea of guilty of assault and battery did not contradict Pruitt’s testimony as to the central issue of the trial: the identification of the appellants as two robbers. Thus, any perjury of Pruitt related only to his own involvement and his credibility. Insofar as the trial of the issue of the appellants’ guilt is concerned, this comes down to Pruitt’s credibility. . . . It is settled that newly discovered evidence which, as to the issues tried, would serve only to impeach the credibility of a witness is not sufficient ground for new trial.101

While the inconsistencies illustrated by Jones clearly affected the

witnesses’ credibility, and certainly served as fodder for impeachment, none

101 Id.

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of the identified inconsistencies rise to the level of demonstrating that the

prosecutors knowingly placed perjured testimony before the jury. The

central issue in this case was whether Jones committed the murders.

Whether Still knew Jones by name, whether Reinford carried a brown or

plastic bag, or whether she gave a statement only after being pressured by

police, do not demonstrate that the State knowingly used perjured testimony.

Inconsistencies such as these all affected Still’s (and the other witnesses’)

credibility (or, perhaps, demonstrated a loss of memory), but do not

demonstrate actual knowledge of deceit on the part of the prosecutors.

Moreover, Jones was not “surprised” by the witnesses’ testimony

because he was fully aware before trial that the State’s case was based on

testimony from Still and Muhammad.102 In fact, Jones’ primary defense was

102 See Cowley v. State, 441 A.2d 638, 640-41 (Del. 1982) (citing Larrison v. U.S., 24 F.2d 82, 87-88 (7th Cir. 1928), overruled, U.S. v. Mitrone, 357 F.3d 712 (7th Cir. 2004), vacated on other grounds, 543 U.S. 1097 (2005)). In Larrison, the Seventh Circuit adopted a three-part test to determine whether a new trial is required where a prosecutor uses perjured testimony: “(1) the witness is material and the testimony false; (2) the jury might have reached a different verdict if it knew the testimony was false or if it hadn’t heard the testimony; and (3) the defense was taken by surprise by the false testimony or didn't learn of its falsity until after trial.” Mitrone, 357 F.3d at 717. In Mitrone, the Seventh Circuit abandoned the Larrison test and adopted the “reasonable probability” test, in line with the other Circuit Courts, which requires a defendant to show that “the existence of the perjured testimony (1) came to their knowledge only after trial; (2) could not have been discovered sooner with due diligence; (3) was material; and (4) would probably have led to an acquittal had it not been heard by the jury.” Id. at 718. Although Delaware still adheres to the Larrison test, that test is applicable only where the witness recants, which has not occurred in this case. See Downes v. State, 771 A.2d 289, 291 (Del. 2001).

44

to discredit the statements offered by Still and the other witnesses. The fact

that Jones has failed to identify a single inconsistent statement in which Still

or any other witness identified an individual other than Jones as the

murderer is sufficiently compelling as well. Likewise, although it is true

that Page was not convicted of robbery, Jones was charged with robbery,

and any reference to the robbery, regardless of whether Page was acquitted

of that charge, was clearly appropriate. Since there has been no showing

that the witnesses gave inconsistent testimony on a central issue of the case,

Jones’ request for relief on this basis cannot be granted.103

Similarly, Jones’ reliance on Hughes v. State is misplaced. In

Hughes, a prosecutor impermissibly stated in his closing argument that the

defendant admitted to having blood on his hands after a murder, even though

the defendant never actually admitted that fact.104 Because the error

addressed a central issue to the case, the Delaware Supreme Court reversed

the convictions, holding that the error affected the defendant’s substantial

rights.105

103 See O’Neal, 247 A.2d at 210. 104 Hughes, 437 A.2d at 572. 105 Id. The Hughes Court stated that, where the prosecutor uses the word “lies” or “liar,” the Court must consider the closeness of the case, the centrality of the issue affected by the alleged error, and the steps taken to mitigate the effects of the error to determine whether prosecutorial misconduct occurred. Id. at 571.

45

In contrast, the State in this case had eyewitness testimony from

Muhammad, and statements from Page’s girlfriend, that Jones was the

shooter. Whether or not an eyewitness testified to Jones’ presence in

Reinford’s car when he was killed is immaterial and does not affect the

critical question of whether Jones was in fact the murderer. Similarly, the

fact that the prosecutor recognized the inconsistencies in witness testimony

during his closing argument and stated that “memories fade” and that the

jury does not have to believe every word, does not demonstrate that the

prosecutors intentionally used perjured testimony. A prosecutor is free to

comment on the evidence and make permissible inferences from

uncontroverted evidence, except in a situation where the defendant has

invoked his Fifth Amendment rights and is the only person who can confirm

or deny the evidence.106 Prosecutorial comments to the effect that witnesses

may have forgotten less significant details surrounding the crimes, such as

whether a television was on or off, or whether Reinford carried a black or

plastic bag, do not suggest any prosecutorial impropriety. Notably, Jones’

counsel admits that there was nothing impermissible in the State’s closing

argument. Jones has failed not only to show that any of his substantial rights

106 Id. at 573.

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were prejudicially affected by errors, but that there were any errors at all.

Under these circumstances, Jones cannot overcome the procedural bars.107

F. Ineffective Assistance of Counsel

Jones’ final contention in his Motion for Postconviction Relief is that

his counsel was ineffective, in violation of his right to effective assistance of

counsel as guaranteed by the Sixth Amendment of the United States

Constitution.108 This claim is now properly before the Court. This

represents Jones’ first postconviction motion. It was timely filed and his

claim was not formerly adjudicated. A claim of ineffective assistance of

counsel is “a constitutional violation that undermines the fundamental

legality, reliability, integrity or fairness of a proceeding.”109 The Court will

therefore address the substantive merits of his claim.110

To evaluate Jones’ claim, the Court applies the two-part test of

Strickland v. Washington.111 Under Strickland, the defendant must establish

that: (1) counsel’s representation fell below an objective standard of 107 See Ross v. State, 482 A.2d 727, 742-43 (Del. 1984). 108 U.S. CONST. amend. VI. 109 State v. Morla, 2007 WL 2566012, at *3 (Del. Super. Ct. Aug. 30, 2007), aff’d, 2008 WL 2809156 (Del. Jul. 22, 2008) (Table). 110 The Court briefly notes that it has already determined that Jones did not receive ineffective assistance of counsel. See Jones, 2005 WL 950122 at *5. The Court will, nonetheless, address Jones’ claims. 111 446 U.S. 668 (1984).

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reasonableness; and (2) there is a reasonable probability that the result of the

proceedings would have been different in the absence of counsel’s error.112

Under the first prong, the Court’s review of counsel’s conduct must be

undertaken in light of the “strong presumption that the representation was

professionally reasonable.”113 Under the second prong, the defendant bears

the burden to affirmatively demonstrate prejudice.114 If either prong of the

Strickland test is not met, the defendant’s claim fails.115

(1) Counsel’s Failure to Challenge the Affidavit of Probable Cause

Jones’ first argument in support of his ineffective assistance of

counsel claim is that his attorneys failed to object to false information in the

affidavit of probable cause for his arrest warrant. He again argues that the

police intentionally lied in their affidavit of probable cause and that counsel

was ineffective for failing to object to the arrest warrant on this basis. Since

he is convinced that the police lacked probable cause for his arrest, he claims

that he should not have been subjected to a trial and incarceration.

112 Albury v. State, 551 A.2d 53, 58 (Del. 1988) (citing Strickland, 446 U.S. at 688, 694). 113 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996) (citing Flamer v. State, 585 A.2d 736, 753 (Del. 1990)). 114 Strickland, 446 U.S. at 694. 115 State v. Collins, 2007 WL 2429373, at *2 (Del. Super. Ct. Aug. 28, 2007), appeal dismissed, 940 A.2d 945, 2007 WL 4100160 (Del. Nov. 19, 2007) (Table).

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Jones’ claim fails under both prongs of the Strickland test. Under the

first prong, he has failed to demonstrate that his attorneys’ representation fell

below an objective standard of reasonableness. As already explained, the

Grand Jury and the Court each determined that there was probable cause to

arrest Jones, and to proceed with a capital murder case against him. Counsel

has also stated that there was no basis to challenge the affidavit because

there was nothing that indicated that the police intentionally lied.

Specifically, after reviewing the affidavit of probable cause, counsel noted

that Muhammad was able to give a statement implicating Jones, even though

he was recovering in the hospital.116 Defense counsel also considered Jones’

claim of falsified evidence in the affidavit and concluded that it was without

merit.117 The Court finds that Jones’ counsel were professionally reasonable

when they chose not to object to the affidavit.

Similarly, Jones has failed to demonstrate that the result of his trial

would have been different had counsel objected to the affidavit. As

explained above, both a Grand Jury and the Court at a proof positive hearing

concluded that there was sufficient evidence to proceed to trial against 116 Obviously, the fact that Muhammad gave a statement indicating that Jones was the shooter is sufficient evidence dispelling any claim that he was unable to speak with police. 117 See Docket 225, Ex. H (Hearing Tr. of Def.’s Mot. to Dismiss Counsel, Sept. 26, 2003, at 15:4-19).

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Jones. Had counsel objected to the affidavit, the Court would not have

agreed. Jones’ claim of ineffective assistance of counsel on this basis must

therefore fail.118

(2) Counsel’s Failure to Object to the Prosecutor’s Closing Argument

Jones’ second claim of ineffective assistance of counsel is that his

counsel failed to object to improper statements made by the prosecutor in his

closing statement. After reviewing the State’s closing remarks, counsel

determined, and so stated in their response to this motion, that the State drew

appropriate inferences from the evidence that was presented at Jones’ trial.

Jones has failed to demonstrate that counsel was ineffective under

Strickland. Although he claims that the prosecutor “vouched” for the

credibility of witnesses, repeated “false” information to the jury, and made

impermissible inferences, the Court disagrees. The State relied solely on

evidence at trial and drew permissible inferences from that evidence.119

Even though there were inconsistencies in the evidence, the prosecutor 118 Strickland, 446 U.S. at 694; State v. Collins, 2007 WL 2429373 at *2. 119 For example, in his closing, the prosecutor stated:

How do we know this actually happened? Well, the murders happened in the early morning of November 21, 1999, on Sunday. Saturday night was November 20, 1999. Let’s begin there. Where was Gotti [Jones] and Quazi [Page]? The first witness puts them together Saturday night November 20, about 6:30 seven [sic] o’clock that evening is Lynn Raikes. That is Kim Still’s friend. . . .

Tr. Trans. at 15:12-18. Although Jones highlights similar statements, the prosecutor drew similar permissible inferences based on evidence admitted at trial.

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correctly identified those inconsistencies and explained that it is the jury’s

province to accept or reject testimony on that basis:

Ladies and gentlemen, it is your function, indeed, it is your duty to make one harmonious picture of what happened and who is criminally responsible for these murders and related crimes. In so doing, you may accept that portion of the evidence and testimony that you believe is credible and worthy of belief and disregard that portion of the evidence and testimony that you do not consider credible or worthy of belief. It is very much like putting together the pieces of a giant puzzle. . . . Certainly, when reviewing this evidence, there may be pieces of the puzzle that you may not use. But if you can see the big picture; what happened and who is criminally responsible, the State has met its burden of proving the guilt of the defendant beyond a reasonable doubt.120

The Delaware Supreme Court, when confronted with an analogous argument

in Bodnari v. State,121 held that similar language was appropriate:

In context, the prosecutor’s remarks cannot be characterized as improper vouching. The prosecutor was asking the jury, when listening to Bodnari’s argument, to decide whether Garcia’s [a witness’s] testimony fit together with the rest of the evidence to create one harmonious account of the events. The prosecutor did not say that Garcia was telling the truth; he said only that Garcia’s testimony was consistent with the rest of the evidence.122

120 Tr. Trans. at 81:13-82:82-14. See also State v. Brown, 2007 WL 1152689, at *6 (Del. Super. Ct. Apr. 17, 2007) (finding a defendant’s assertions that the State improperly vouched for the credibility of a turncoat witness in a closing statement to be without merit where the prosecutor merely explained the inconsistencies between a witness’s in-court testimony and out-of-court statements). 121 839 A.2d 665, 2003 WL 22880372 (Del. Dec. 3, 2003) (Table). 122 Bodnari, 839 A.2d 665, 2003 WL 22880372 at *2.

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Having reviewed the prosecutor’s closing remarks, the Court

concludes that the prosecutor did not improperly vouch for the State’s

witnesses but was simply asking the jury to consider that the witnesses’

testimony, as a whole, was consistent with the State’s theory of the murders.

Thus, had counsel objected, the Court would have permitted the argument to

proceed.

(3) Counsel’s Failure to Object Still’s Section 3507 Statement

Jones next claims that he received ineffective assistance of counsel

because counsel failed to object to the voluntariness of Still’s Section 3507

statement, and failed to seek suppression on the basis of the coercive nature

of the interview. Counsel notes that, although police used forceful tactics in

their interview of Still, there was no evidence to suggest that her statement

was involuntary or the result of coercion. Counsel determined instead that it

would be in Jones’ best interest to allow the jury to see the process when she

gave her statement and highlight discrepancies between her out-of-court

statement and her in-court testimony.

In fact, this Court addressed the voluntariness of Still’s out-of-court

statements when it denied Jones’ motion to suppress portions of her

statement. Specifically, Jones contended that Still’s statements were unduly

prejudicial to him because she stated “that she wanted to be honest with the

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police, but she was scared for herself and her children.”123 The Court then

implicitly found her statements to be voluntary:

The probative value of Still’s statements of fear is that they explain why she led the police on an hours-long goose chase before telling the whole story. The State is justifiably concerned that Still will not appear credible unless it is shown that she believed, at least at first, that she had to lie to protect herself and her children. The “fear statements” put the interview in context, explaining Still’s hesitations and awkward responses.124

More importantly, the Superior Court found Still’s statement to be voluntary

when the State used it at Page’s trial:

I think if you look at the cold antiseptic record, you may get a different feeling, but when you review the tape-recording and how she was treated by the police officers during the course of the interview, I cannot conclude that she was in any way coerced. She certainly was urged to come clean, to tell them more than she was initially willing to reveal. They used police tactics to try and get her to do that, but not in my opinion tactics that overbore her willingness to testify truthfully or her voluntariness. And I think under the circumstances, in light of the totality of the circumstances, particularly in view of the tape, as I reviewed it, I think the statement can come in, and that it is voluntary.125

123 State v. Jones, 2004 WL 2914276, at *5 (Del. Super. Ct. Dec. 14, 2004). 124 Id. 125 Page, 934 A.2d at 900.

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On appeal, the Delaware Supreme Court agreed that the trial judge did

not abuse her discretion in determining that her statement was voluntary.126

Since the Court had already determined that the very same statement by Still

was voluntary in the context of the co-defendant Page’s case, there was no

basis for counsel to challenge the voluntariness of her statement.

It is significant to note that counsel did, in fact, seek to suppress

portions of Still’s statement.127 That effort resulted in a finding by the Court

that Still was not coerced, which undermines Jones’ arguments here.

Moreover, because Still’s statement had already been determined to be

voluntary in the context of Page’s trial, the outcome of Jones’ trial would not

have been any different had counsel challenged the voluntariness of her

statements. Counsel made a strategic decision not to object to the statement

at trial in order to demonstrate to the jury that she was not credible. Because

this decision was reasonable, Jones has failed to demonstrate prejudice under

Strickland.128

126 Id. 127 See State v. Jones, 2004 WL 2914276 (Del. Super. Ct. Dec. 14, 2004). 128 See, e.g., Capano v. State, 889 A.2d 968, 976 (Del. 2006) (finding that defendant failed to establish ineffective assistance of counsel where counsel made an objectively reasonable decision not to object to evidence as a matter of strategy).

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(4) Counsel’s Failure to Object to Perjured Testimony at Trial

As another basis to support his ineffectiveness of counsel argument,

Jones submits that his attorneys failed to object to the State’s use of perjured

testimony. In response, counsel note that their duty was to cross-examine

each witness vigorously, not to object to testimony they may have believed

to be perjured.

Cross-examination of a witness by counsel is a tactical matter that will

not be reexamined without a showing of prejudice.129 Here, Jones has failed

to establish that any of his attorneys’ cross-examinations were objectively

unreasonable or prejudicial. Throughout trial, counsel highlighted the

numerous inconsistencies in the witnesses’ testimony in hopes of persuading

the jury to discount their version of events implicating Jones. The fact that

the jury ultimately concluded that Jones had committed the crimes does not

automatically mean that counsel did not perform effectively.130 Moreover,

had counsel objected on the ground that the prosecution used perjured

testimony, it would have been overruled. As explained above, Jones has

failed to put forth any evidence that the State intentionally used perjured

testimony to obtain his conviction. In fact, the State candidly acknowledged 129 Outten v. State, 720 A.2d 547, 557 (Del. 1998). 130 State v. Jordan, 1994 WL 637299, at *3 (Del. Super. Ct. Jun. 23, 1994), aff’d, 648 A.2d 424, 1994 WL 466142 (Del. Aug. 25, 1994).

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in its closing arguments that witnesses testified inconsistently.131 None of

those inconsistencies, however, related to the central issue of his trial; that is,

whether Jones committed the murders. Indeed, all of the inconsistencies

cited by Jones were in fact raised by his counsel during cross-examination,

and the credibility of the witnesses was thus placed before the jury.

Jones’ reliance upon the case of Mills v. Scully132 to support his claim

that his attorneys should have objected to perjured testimony is misplaced.

That case was overruled by the Second Circuit on that very basis. The

District Court in Mills had concluded that a defendant’s attorney was

ineffective for failing to question a witness about her grand jury testimony,

which was directly contradictory to her trial testimony.133 On appeal, the

Court of Appeals for the Second Circuit reversed, noting that the defendant’s

counsel’s strategic decision did not amount to ineffective assistance of

counsel:

The district court concluded that the first prong of the Strickland test was satisfied because Mills’ attorney had access to the grand jury testimony of Tracy Gist and “there is simply no legitimate basis upon which trial counsel would have ignored this testimony in his cross-examination of Gist.” 653 F. Supp. at 895. We disagree. As we pointed out in Part I, defense counsel seems to have followed sound trial strategy by

131 See Tr. Trans. at 81:13-82:14. 132 653 F. Supp. 885 (S.D.N.Y. 1987), reversed, 826 F.2d 1192 (2d Cir. 1987). 133 Mills, 653 F. Supp. at 895.

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deciding to forgo use of Gist’s grand jury testimony, which included a version of the shooting different from that advanced by Mills at trial as well as an admission of weapon possession. Weighing the advantages of cumulative impeachment evidence against the disadvantages of incriminating admissions and inconsistent versions of events, counsel’s choice to avoid the grand jury testimony in toto appears well justified. It surely cannot be said that this choice failed to measure up to any objective standard of reasonableness. Moreover, as discussed in Part I, there is no reasonable probability that the result of the trial would have been different if defense counsel had put the grand jury testimony before the trial jury.134

As in Mills, defense counsel in this case vigorously exposed

discrepancies in the witnesses’ testimony. The fact that they chose to cross-

examine about certain matters and not object to others does not mean that

they were ineffective. Rather, these were strategically sound exercises in

judgment. Thus, Jones has failed to meet his burden.

(5) Counsel’s Failure to Object to Geralyn Holmes’s Testimony

Jones contends that he received ineffective assistance of counsel when

his attorneys failed to object to Geralyn Holmes’s testimony on the basis of

relevance and prejudice. Counsel’s method of cross-examining Holmes was

again the result of a tactical decision.135 Defense counsel submits, and the

record reflects, that Holmes was appropriately cross-examined, and

discrepancies in her testimony were highlighted. The decision to refrain

134 Mills, 826 F.2d at 1197. 135 Outten, 720 A.2d at 557.

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from objecting on relevancy or prejudice grounds was objectively

reasonable.

Moreover, any objection by counsel on the grounds of relevancy or

prejudice would have been overruled. Holmes testified that she observed

Reinford in the presence of two individuals, presumably Page and Jones,

during the late hours of November 20, 1999, just prior to Reinford’s death.

This circumstantial evidence linked Jones to the murder and was thus highly

relevant. While it may have been prejudicial to Jones’ defense, all of the

State’s evidence, by its very nature, was likely to be unfavorable to the

defendant. What is obvious to the Court, however, is that the probative

value of the evidence was substantial and that it was not outweighed by the

danger of any unfair prejudice.

(6) Counsel’s Failure to Call Hospital Personnel

Jones next claims that counsel was ineffective for failing to call

hospital personnel who attended to Muhammad while he was in the hospital.

He argues that, had they been called, they would have testified that

Muhammad was too medicated to identify Jones, thereby suggesting that the

police fabricated his statement.

Jones has failed to demonstrate ineffective assistance of counsel on

this basis. Counsel stated that they obtained all medical records, including a

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toxicology report, of Muhammad prior to trial. At trial, counsel offered

evidence of the medication in Muhammad’s bloodstream in an effort to cast

doubt on his ability to identify Jones while he was hospitalized and under the

influence of medication. The decision to refrain from calling hospital

personnel objectively made sense in light of the fact that it was obvious from

the videotape that Muhammad was sufficiently lucid to answer the officers’

questions in a meaningful manner, and the jury could draw their own

conclusions based upon their review of that tape. Hospital personnel

attending to Muhammad would not have bolstered Jones’ defense.

(7) Counsel’s Failure to Call an Alibi Witness

Jones claims that his attorneys were ineffective because they failed to

call his alibi witness. Jones does not offer any specific alibi other than a

general claim that he was not at the scene of crime. Counsel notes that they

contacted the alibi witness identified by Jones, but the witness did not offer a

credible alibi as to Jones’ whereabouts on November 20, 1999, because she

was unable to recall events that occurred on that date. The State’s witnesses,

on the other hand, through their videotaped interviews shortly after the

murders, offered contemporaneous memorialized versions of the events.

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It is true that counsels’ failure to call an alibi witness where a valid

alibi exists can amount to ineffective assistance of counsel.136 Jones has

failed, however, to demonstrate that he had a viable alibi. First, Jones’

statement that he had an alibi witness is completely conclusory and need not

be addressed.137 Jones has not offered, for example, any evidence as to

where the alleged alibi witness lived, what his or her alibi was, or any means

of contacting the alleged alibi witness to verify his or her story.138

Interestingly, throughout his postconviction motion, Jones refers to an

alibi witness by the name of Desiree Harper. Yet, in the response to Jones’

ineffective assistance claim in his postconviction motion, counsel submits

that Jones only identified an individual by the name of Tina or Trina

Williams. This discrepancy is revealing in that it is likely that Jones cannot

substantiate his claim of an alibi defense because he appears to be

fabricating witnesses as time goes on. Under the circumstances, counsel’s

failure to call an alibi witness cannot be deemed ineffective assistance of

counsel.

136 See, e.g., State v. Gattis, 1995 WL 790961, at *35 (Del. Super. Ct. Dec. 28, 1995.), aff’d, 697 A.2d 1174 (Del. 1997), cert. denied, 522 U.S. 1124 (1998) (discussing cases where an attorney’s failure to call an alibi witness could be deemed ineffective assistance of counsel). 137 State v. Jordan, 1994 WL 637299, at *3 (Del. Super. Ct. Jun. 23, 1994), aff’d, 648 A.2d 424, 1994 WL 466142 (Del. Aug. 25, 1994) (Table). 138 State v. Lewis, 2006 WL 2560145, at *5 (Del. Super. Ct. Aug. 29, 2006), appeal dismissed, 913 A.2d 570, 2006 WL 3604832 (Del. Dec. 12, 2006) (Table).

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(8) Counsels’ Failure to Interview Still and Muhammad

As his final basis to support a finding of ineffective assistance of

counsel, Jones argues that counsel failed to interview Still and Muhammad

prior to trial. Jones’ claim of ineffective assistance of counsel on this

ground fails for a number of reasons, most compelling of which is that

counsel endeavored to interview both of these witnesses. Specifically,

counsel submitted billing statements indicating that either counsel or an

investigator contacted both Still and Muhammad for interviews.139 Both

witnesses, however, refused to speak either with counsel or with the defense

investigator. Since the ability to speak with these individuals was beyond

counsels’ control, Jones has failed to demonstrate either prong of Strickland,

and his claim fails.

VII. Jones’ Request for Counsel and an Evidentiary Hearing

Jones’ final request is that the Court appoint counsel on his behalf to

assist him with his postconviction motion. Because the issues he raises are

complex, he believes that the assistance of an attorney will serve the interest

of justice. He also requests an evidentiary hearing to address the issues

raised in this motion.

139 See Counsel’s Aff., Ex.

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Superior Court Criminal Rule 61(e)(1) gives the Court discretion to

appoint counsel on behalf of an indigent defendant for good cause.140 Jones

has not demonstrated good cause for the Court to appoint counsel to assist in

presenting this motion. As the record reflects, Jones submitted a one-

hundred-and-twelve page postconviction motion in which he: (1) reviewed

the record; (2) cited case law; and (3) made notes throughout numerous

transcripts and letters in support of his arguments. He also included

hundreds of pages of trial transcripts that he cited in his motion. Although a

brief filed by an attorney would have been more succinct, Jones has fully

developed his arguments and presented a coherent motion for the Court to

analyze. Therefore, the Court declines to exercise its discretion to appoint

counsel.

Furthermore, the Court is satisfied that appointment of counsel in this

case would have been wasteful and unnecessary because Jones’ claims lack

merit. The Court has analyzed every single claim raised by Jones, none of

which are supported by the record.141 Moreover, counsels’ responses to the

motion did not raise any further issues that the Court deemed appropriate for

140 Super. Ct. Crim. R. 61(e)(1). 141 See Warrington v. State, 892 A.2d 1085, 2006 WL 196437, at *1 (Del. Jan. 24, 2006) (finding that the Superior Court did not abuse its discretion by refusing to appoint the defendant counsel to assist with a postconviction motion where defendant had no factual basis for any of his claims).

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additional research, argument, or consideration. Indeed, the performance of

defense counsel during the guilt phase of this case was of the highest caliber,

notwithstanding Jones’ valiant, thorough, and creative efforts to undermine

it in his postconviction relief motion. Therefore, the Court declines to have

an evidentiary hearing to address Jones’ claims.142

VIII. Conclusion

The Court has thoroughly reviewed Jones’ motions, the exhibits

attached thereto, and counsels’ responses to his allegations. All of Jones’

claims are either procedurally barred or lack merit. Jones is therefore not

entitled to relief. Accordingly, Defendant’s First Pro Se Motion for

Postconviction Relief is hereby DENIED.

IT IS SO ORDERED.

__________________________ Peggy L. Ableman, Judge Original to Prothonotary cc: Kevin J. O’Connell, Esquire Jerome M. Capone, Esquire Stephen M. Walther, Esquire John A. Barber, Esquire

Michael Jones

142 See Super. Ct. Crim. R. 61(h)(1) (“After considering the motion for postconviction relief, the state’s response, the movant's reply, if any, the record of prior proceedings in the case, and any added materials, the judge shall determine whether an evidentiary hearing is desirable.”). After consideration of the record, the Court finds that an evidentiary hearing is not desirable. See id. R. 61(h)(3) (“If it appears that an evidentiary hearing is not desirable, the judge shall make such disposition of the motion as justice dictates.”).