Submitted: September 24, 2014.
Case Closed December 9, 2014.
Court Below: Superior Court of the State of Delaware, in and for New Castle County. Cr. I.D. No. 0701018040.
Thomas A. Foley, Esquire, (argued), Joseph M. Bernstein, Esquire, Wilmington, Delaware, for Appellant.
Elizabeth R. McFarlan, Esquire (argued), Karen V. Sullivan, Esquire, Department of Justice, Wilmington, Delaware, for Appellee.
Before STRINE, Chief Justice, RIDGELY and VALIHURA, Justices.
Defendant-Below, Appellant Mark Purnell (" Purnell" ) appeals from a Superior Court Order denying his Rule 61 motion for postconviction relief following his conviction of the following offenses: murder second degree; attempted robbery first degree; possession of a firearm during commission of a felony; possession of a deadly weapon during commission of a felony; possession of a deadly weapon by a person prohibited; and conspiracy second degree.
On October 17, 2008, Purnell was sentenced to an aggregate of 77 years at L-5, 21 years of which were mandatory, suspended after serving 45 years at decreasing levels of supervision. Purnell's convictions and sentences were affirmed by this Court on direct appeal.
A timely motion for post-conviction relief (" Rule 61 motion" ) was filed on March 25, 2010. An amended Rule 61 motion was filed on October 11, 2011. The Superior Court referred the matter to a Commissioner for findings and a recommendation. On July 3, 2012, the Commissioner recommended that the Rule 61 motion be denied. Purnell filed a timely appeal from the Commissioner's findings and recommendations. On May 31, 2013, the Superior Court issued its decision denying Purnell's Rule 61 motion.
On June 28, 2013, Purnell filed a timely appeal in this Court from the Superior Court's Rule 61 decision. Purnell raises four arguments on appeal, all related to the performance of his trial counsel. First, Purnell argues that his trial attorney was ineffective under Strickland v. Washington  when he failed to request an
accomplice credibility jury instruction. Second, Purnell contends that his counsel was ineffective when he failed to request a limiting instruction regarding the guilty plea entered into by his co-defendant, Ronald Harris (" Harris" ), where the plea was entered following selection of the jury for a joint trial, but before the trial began. Third, Purnell contends that his counsel was ineffective when he failed to appeal the trial court's ruling denying his request to empanel a new jury following disclosure of Harris' guilty plea. Finally, Purnell argues that his trial counsel was ineffective when he failed to object to comments made by the prosecutor, which Purnell contends amounted to improper " vouching" for Harris' credibility.
We find no merit to Purnell's appeal. Accordingly, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Tameka Giles (" Mrs. Giles" ) was murdered after a botched robbery attempt on January 30, 2006. She was walking with her husband when two men approached them and demanded money. After she refused, one of them fatally shot her in the back. Both men fled.
The police quickly identified Harris as a suspect based on eyewitness identification from Angela Rayne, who had been smoking crack cocaine nearby at the time of the shooting. Mrs. Giles' husband also tentatively identified Kellee Mitchell (" Mitchell" ) as one of the shooters in a photo lineup. The police arrested both men on February 18, 2006. At the time of the arrest, Purnell was in Harris' apartment, but was not yet considered a suspect. Neither Harris nor Mitchell identified Purnell as one of the assailants during any of their respective interviews with the police in 2006.
Purnell was not identified as a suspect until January 2007, when Corey Hammond (" Hammond" ) informed the police that he had seen Purnell and Harris together on the day of the shooting. Hammond had previously denied knowing anything about the crime, but suddenly recalled that Purnell had complained about needing money and was carrying a firearm on the morning of January 30, 2006. Hammond also informed police that Purnell had later bragged about killing Mrs. Giles. As with most of the State's witnesses, Hammond's credibility was an issue: his statement to police followed an arrest on drug-related charges, and the State agreed to reduce his sentence in exchange for his trial testimony.
Also in January 2007, Mitchell changed his story and informed the police that Purnell was involved in the shooting. He recalled a conversation in April 2006 with Purnell in which Purnell confessed to shooting Mrs. Giles. Mitchell's girlfriend, Etienne Williams (" Williams" ), also claimed that she had overheard Purnell confess during a telephone call.
Based on this evidence, the police arrested Purnell. In April 2007, Purnell and Harris were jointly indicted on charges of murder in the first degree, attempted robbery in the first degree, conspiracy in the second degree, possession of a firearm during the commission of a felony, and possession of a deadly weapon by a person prohibited. A jury was selected for the trial on April 2, 2008. Five days later, before the trial began, Harris accepted a plea deal from the State. In exchange for
pleading guilty to reduced charges, Harris agreed to testify against Purnell. The trial against Purnell began on April 14, 2008, with the same jury initially selected for the joint trial.
The jury voted to convict Purnell of murder in the second degree, attempted robbery in the first degree, possession of a firearm during the commission of a felony, possession of a deadly weapon during the commission of a felony, possession of a deadly weapon by a person prohibited, and conspiracy in the second degree. Purnell was sentenced by the Superior Court to an aggregate of 77 years at Level 5 incarceration, 21 years mandatory, suspended after serving 45 years at decreasing levels of supervision. Both the conviction and sentence were affirmed by this Court on direct appeal on August 25, 2010.
Purnell then filed a motion for postconviction relief under Rule 61, alleging ineffective assistance of counsel. The Superior Court referred Purnell's motion to a Commissioner for findings and a recommendation. On July 3, 2012, the Commissioner issued her recommendation that the motion be denied, which Purnell appealed, seeking de novo review by a judge of the Superior Court. After hearing oral arguments, the Superior Court issued its ruling denying Purnell's motion on May 31, 2013. Purnell now appeals that decision to this Court.
As we recently stated in Hoskins v. State, " '[w]e review a Superior Court judge's denial of a Rule 61 motion for postconviction relief for abuse of discretion." ' Constitutional questions and other questions of law are reviewed de novo.
Purnell's claims all allege instances of ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. An ineffective assistance of counsel claim requires a defendant to satisfy the two-pronged test set out in Strickland v. Washington. First, the defendant must show that counsel's performance was deficient, " meaning that 'counsel's representation fell below an objective standard of reasonableness." ' " If counsel is shown to be deficient, then the defendant must demonstrate prejudice from counsel's error." 
In analyzing the first prong of Strickland, a defendant bears a heavy burden in demonstrating that trial counsel's representation fell below an objective standard of reasonableness. As we said in Hoskins, " [i]n order to eliminate 'the distorting effects of hindsight,' there is a strong presumption that ...