Submitted: Sept. 18, 2013.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Court Below: Superior Court of the State of Delaware in and for New Castle County, ID No. 0812021569.
Upon appeal from the Superior Court. AFFIRMED.
Joseph M. Bernstein, Wilmington, Delaware for appellant.
John Williams, Department of Justice, Dover, Delaware for appellee.
Before STEELE, Chief Justice, HOLLAND and JACOBS, Justices.
STEELE, Chief Justice:
In this appeal of a denial of a postconviction relief motion, we consider whether trial and appellate counsel were ineffective during their representation of the defendant, stemming from a series of robberies on New Year's Eve 2008. The defendant argues that his trial and appellate counsel were ineffective for failing to request at trial, and for failing to argue on direct appeal: (1) the inclusion of a Bland instruction in connection with certain accomplice testimony; and (2) the admission of certain out-of-court statements under Delaware Rule of Evidence 804(b)(3). We ultimately hold that the defendant's trial and appellate counsel were not ineffective in their representation. Accordingly, we
AFFIRM the judgment of the postconviction relief judge.
I. FACTUAL AND PROCEDURAL HISTORY
A. The New Year's Eve Robberies
On December 31, 2008, a group of armed men wearing gloves and disguises robbed three businesses in Wilmington. The first business was Cutrona Liquors. The co-owners, Ashok and Navin Patel, testified at trial that three men rushed into the store brandishing a gun. The men pointed the gun at Ashok and ordered him and his wife into a corner of the store. " While one member of the gang guarded the door, another emptied cash and receipts from a box, and the third removed vodka from a display."  The robbers fled the scene in a white car. Ashok followed the car and obtained the license plate number, which he later turned over to the police.
The robbers next visited Dun-Rite Dry Cleaners. Soo Kim, a co-owner, testified that three men casually entered the store while she attended to a customer. After the customer left, the three men rushed toward her with a gun. Kim fled to the back of the store and called the police. Her husband and another employee opened the cash register for the robbers.
The group then descended upon Creative Images Barber Shop. Larry Parks, the owner, testified at trial that three men entered the store brandishing guns and demanded money, wallets, and cell phones. The robbers held Parks at gunpoint and pistol whipped two customers with a gun.
Wilmington Police located and arrested four men in a white Chevrolet Lumina later that day. Inside the car, officers discovered the " spoils of their felonious escapade" :  a handgun, masks, liquor bottles, cash, and other items plundered from the stores. Officers eventually identified the men in the car as Kevin Berry, Robert Brown, Michael Neal, and Kadeem Reams.
A grand jury indicted Neal on 36 counts related to the New Year's Eve robberies: nine counts each of First Degree Robbery, Possession of a Firearm During the Commission of a Felony, Wearing a Disguise During the Commission of a Felony, and Second Degree Conspiracy.
B. Neal's Trial
Neal's trial began on August 11, 2009. Prior to trial, the State offered each of the four co-defendants a plea bargain in exchange for his testimony at any of the other co-defendants' trials. Berry, Brown, and Reams accepted their plea offers. Neal did not accept his plea offer and proceeded to trial.
At trial, the State presented 85 exhibits and the testimony of 24 witnesses. The State also planned to present the testimony of Neal's three co-defendants pursuant to the terms of their plea bargains. The State presented Brown's testimony, which implicated Neal as having played a role in the inception, planning, and execution of the robberies. On cross-examination, however, Brown admitted to initially telling the police that Neal had not participated in the robberies. Neal's trial counsel did not request a Bland instruction and the trial judge did not sua sponte give a Bland instruction regarding Brown's testimony.
The State declined to call Berry and Reams when it learned that the two co-defendants had made out-of-court statements tending to exculpate Neal. Berry made the exculpatory statement to his attorney, while Reams spoke directly to the Attorney General and detectives. The
State relayed this information to Neal's trial counsel.
Neal's trial counsel then attempted to call Berry and Reams to testify on the defendant's behalf. Each of them, however, invoked his Fifth Amendment right against self-incrimination and refused to testify. Berry and Reams feared that if they testified in Neal's defense, they would breach their plea bargains with the State. Without their testimony, Neal's trial counsel sought to admit Berry's and Reams's out-of-court statements under 11 Del. C. § 3507.  After brief argument on the issue, the trial judge concluded that the statements were not admissible under Section 3507. The trial judge reasoned that Berry and Reams would not be " subject to cross-examination" under the statute if they invoked their Fifth Amendment privileges. Neal's lawyer asserted no other basis to admit the statements. Neal called no other witnesses and presented no evidence in his defense. A jury convicted Neal on all 36 counts and the trial judge sentenced him to 54 years incarceration.
C. Neal's Motion for Judgment of Acquittal and Direct Appeal
At the conclusion of his case, Neal moved for a judgment of acquittal on twelve counts in the indictment. Neal argued that because he did not victimize Patel, Kim, or Harris, as the statute required, his convictions regarding these alleged victims were improper. The trial judge denied Neal's motion and found sufficient evidence from which a rational jury could conclude that these individuals were victims of the robberies. Neal appealed to this Court the ruling regarding the eight counts related to Patel and Kim.
On direct appeal, this Court affirmed the trial judge's denial of Neal's motion for judgment of acquittal. We concluded that " [b]ecause Patel and Kim had custodial and ownership interests in their respective businesses, Delaware law includes them as victims of Neal's robbery."  Moreover, we explained that these co-owners were victims even though they did not personally deliver money from their cash registers.
D. Neal's Postconviction Relief Proceedings
Neal then moved for postconviction relief in the Superior Court under Rule 61. Broadly, Neal asserted two bases for relief: (1) ineffective assistance of counsel; and (2) prosecutorial misconduct. The postconviction relief judge denied Neal's motion in its entirety. First, although the postconviction relief judge found that Neal's trial counsel erred by failing to request an accomplice testimony instruction under Bland v. State,  he concluded that this error did not prejudice Neal's trial. At the time of the ruling, the failure to request a Bland instruction was not per se prejudicial. Accordingly, the postconviction relief judge reasoned that " [b]ecause the evidence against Neal was overwhelming," Neal suffered no prejudice.
Second, the postconviction relief judge found no prosecutorial misconduct. Neal
alleged that the prosecutor improperly deterred Berry and Reams from testifying for the defense by threatening to revoke their plea bargains if they did so. The postconviction relief judge reminded the defendant that " the State may warn a witness of the possible consequences of testifying falsely,"  although the prosecutor may not do so in a way that " substantially interferes with the witness's choice to testify."  The postconviction relief judge found that the prosecutor did not substantially interfere with Berry's and Reams's choice to testify, but merely reminded them of the consequences of giving false testimony.
Neal now appeals the Superior Court judge's denial of his motion for postconviction relief. He asserts that both his trial counsel and appellate counsel were ineffective. Neal argues that his trial counsel was ineffective in failing both to argue that Berry's and Reams's statements were admissible under D.R.E. 804(b)(3) and to request a Bland instruction. Similarly, he argues that his appellate counsel was ineffective in failing to argue on direct appeal that the trial judge should have given a Bland instruction. In addition to the arguments made before the postconviction relief judge, Neal raises in this Court a new claim of ineffective assistance of counsel. Neal now ...