Submitted: January 14, 2015
Andrew J. Vella, Esquire, Deputy Attorney General, 820 N. French Street, 7th Floor, Department of Justice, Wilmington, Delaware, Attorney for the State.
Michael W. Modica, Esquire, 715 N. King Street, Suite 300. P.O. Box 437, Wilmington, Delaware, 19899, Attorney for Defendant Damone E. Flowers.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE GRANTED.
BRADLEY V. MANNING, COMMISSIONER
This 23rd day of April, 2015, upon consideration of defendant Damone E. Flowers' Motion for Postconviction Relief, it appears to the Court that:
The facts giving rise to Flowers' convictions, as set forth by the Delaware Supreme Court in its opinion on Flowers' direct appeal, are as follows:
On August 1, 1998 Alfred Smiley drove a car with two passengers in the area of 22nd and Lamotte Streets in Wilmington. At some point, Smiley became involved in an argument with several people on the street. A gunshot fired from the sidewalk next to the car struck Smiley in the chest. The car careened out of control on the street and came to rest against a utility pole. Wilmington Police responded to the call and took Smiley to the hospital where he died from the gunshot wound.
The State charged Damone Flowers with Smiley's murder and presented five witnesses at trial who were alleged to have been present at the scene of the shooting. Most of the incriminating evidence was presented through pretrial taped statements [pursuant to 11 Del. Code § 3507].  Flowers presented no witnesses and did not testify. A jury convicted Flowers of First Degree Murder and Possession of a Firearm During the Commission of a Felony. The trial judge denied Flowers' motion for a new trial. 
II. PROCEDURAL HISTORY
On October 30, 2003, Flowers was convicted of Murder in the First Degree and Possession of a Firearm During the Commission of a Felony, and subsequently sentenced to life in prison, plus ten years. Flowers, with the assistance of counsel, took a direct appeal to the Delaware Supreme Court. The Delaware Supreme Court affirmed the convictions on August 31, 2004. On May 3, 2005, Flowers filed a pro se Motion for Postconviction Relief under Superior Court Criminal Rule 61. Flowers' motion encompassed eleven separate grounds for relief and was supported by a handwritten 133 page memorandum of law. The Superior Court denied this motion on December 13, 2005. Flowers then appealed to the Delaware Supreme Court, however, that appeal was dismissed as untimely on April 4, 2006. Finding no relief in state court, Flowers pursued his postconviction claims in federal court. Flowers' federal claims were denied on September 22, 2008.
On May 14, 2012, Flowers filed a second pro se Motion for Postconviction Relief pursuant to Rule 61 in the Superior Court ("Rule 61 Motion"). On April 25, 2013, with the assistance of counsel ("Rule 61 Counsel"), Flowers filed an Amended and Superseding Rule 61 Motion for Post Conviction relief that is the subject of this Report. Flowers' counsel in the 2003 trial ("Trial Counsel") filed an Affidavit in response to Flowers' claims on November 14, 2013. The State filed its Response on March 18, 2013. At the Court's request, Supplemental briefing was filed by Rule 61 Counsel on December 18, 2014. The State and Trial Counsel, at their election, did not file any subsequent responses.
III. FLOWERS' RULE 61 CLAIMS
In Flowers' Amended and Superseding Rule 61 Motion, Flowers raises five claims of ineffective assistance of counsel at the trial and appellate level. Flowers' claims can be summarized as follows:
1. Trial Counsel was ineffective by failing to object to the admission of the five section 3507 statements based on inadequate foundation; 
2. Trial Counsel was ineffective by failing to object to the admission of the section 3507 statements as cumulative to the respective witnesses' live in-count testimony;
3. Trial Counsel was ineffective by failing to object to allowing the jury to have copies of the section 3507 statements in the jury room during deliberations;
4. Trial Counsel was ineffective by failing to investigate and/or present the exculpatory testimony of five different witnesses;
5. Trial Counsel was ineffective by not raising claims of plain error on appeal to the erroneous admissions of the section 3507 statements during trial and as evidence given to the jury during its deliberations.
Because Flowers' filed his motion prior to the most recent amendment to Rule 61, his claims will be evaluated as Rule 61 existed on April 25, 2013. 
IV. LEGAL STANDARD
To prevail on an ineffective assistance of counsel claim, a defendant must meet the two-pronged Strickland test by showing that: (1) counsel performed at a level "below an objective standard of reasonableness" and, (2) that the deficient performance prejudiced the defense. The first prong requires a defendant to show by a preponderance of the evidence that trial counsel was not reasonably competent, while the second prong requires a defendant to show that there is a reasonable probability that, but for trial counsel's unprofessional errors, the outcome of the proceedings would have been different.
When a court examines a claim of ineffective assistance of counsel, it may address either prong first; where one prong is not met, the claim may be rejected without contemplating the other prong.
Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice. An error by trial counsel, even if professionally unreasonable, does not warrant setting aside the judgment of conviction if the error had no effect on the judgment.
Although not insurmountable, the Strickland standard is highly demanding and leads to a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance. Moreover, there is a strong presumption that trial counsel's conduct constituted sound trial strategy.
In considering post-trial attacks on trial counsel, Strickland cautions that trial counsel's performance should be reviewed from trial counsel's perspective at the time decisions were being made. It is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting efforts of hindsight. Second guessing or "Monday morning quarterbacking" should be avoided. 
The Supreme Court of the United States recognized that there are countless ways to provide effective assistance in any given case. Additionally, the Court cautioned that reviewing courts must be mindful of the fact that unlike a later reviewing court, trial counsel observed the relevant proceedings, knew of materials outside the record, and interacted with his client, with opposing counsel and with the judge.
Even the best criminal defense attorneys would not defend a particular client in the same way. Consequently, trial counsel must be given wide latitude in making tactical decisions. Counsel's representation must be judged by the most deferential of standards and there is a strong presumption that trial counsel's conduct constituted sound trial strategy.
V. PROCEDURAL BARS
Superior Court Criminal Rule 61 governs motions for postconviction relief.Before addressing the substantive merits of any claim for postconviction relief, the Court must consider the procedural requirements of Rule 61. Rule 61(i) establishes four procedural bars to a motion for postconviction relief.
Rule 61(i)(1) provides that a motion for postconviction relief must be filed within one year of a final judgment of conviction. Under Rule 61(i)(2) any ground not asserted in a prior postconviction proceeding is barred "unless consideration of the claim is warranted in the interests of justice." Rule 61(i)(3) bars consideration of any claim not asserted at trial or on direct appeal unless the movant can show "cause for relief from the procedural default" and "prejudice from violation of the movant's rights." Rule 61(i)(4) provides that any ground for relief that was formerly adjudicated is thereafter barred.
Even if a procedural defect exists, the Court may consider the merits of the claim if the Defendant can show that an exception found in Rule 61(i)(5) applies. Rule 61(i)(5) provides that a defect under Rule 61(i)(1)–(4) will not bar 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 judgment of conviction."
At the outset, the Court notes that this is Flowers' second Rule 61 Motion. As such, the motion is repetitive under Rule 61(i)(2) and falls outside the time limits for filings set by Rule 61(i)(1). Flowers seeks to overcome these procedural bars to relief by utilizing Rule 61(i)(2), for claims made in the "interest of justice" that were not raised in prior proceedings, and Rule 61(i)(5), for claims based on a "colorable claim that there was a miscarriage of justice."
A review of Flowers' five claims, shows that none were formerly adjudicated in prior proceedings either at the trial, appeal or post conviction level, making Rule 61(i)(4) inapplicable.
Flowers argues that the procedural bar of Rule 61(i)(3) is inapplicable here because although his five claims were not asserted in any prior proceedings, he has shown cause for relief from the procedural default. Flowers' argues that the procedural default was created by Trial Counsel's ineffectiveness in not raising these claims during trial or on appeal. According to Flowers, the result of this ineffectiveness prejudiced him: namely that he was convicted at trial but should not have been and that his case should have been reversed on appeal, but was not.
In opposition, the State argues that all of Flowers' claims are time barred, and that the first claim is procedurally barred because it does not satisfy the requirements of Rule 61(i)(5) because Flowers has failed to prove the existence of a constitutional violation under the rule. The State relies on State v. Taylor, to support its argument. In Taylor, the Superior Court stated the following:
[In] order to invoke Rule 61(i)(5) and by-pass Rule 61(i)(3)'s procedural bars, [a defendant] not only must raise a colorable claim that there was a miscarriage of justice, he also must show that the miscarriage of justice was caused by a constitutional violation. Further, he must demonstrate that the constitutional violation involved not only a mistake, but  must [also] show that the mistake undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to his conviction. While the thresholds imposed by Rules 61(i)(3), (4) and (5) are not insurmountable, they are substantial and they are enforced.
In the present case, the Court finds that Flowers' first claim is not barred by Rule 61 because a constitutional violation occurred when the § 3507 statements were admitted without the proper foundation. The Delaware Supreme Court has held that "[t]he Sixth Amendment requires an entirely proper foundation, if the prior statement of a witness is to be admitted under § 3507 as independent substantive evidence against an accused."Additionally, in Webster v. State,  the Delaware Supreme Court held that "when a petitioner makes a colorable claim to a mistaken waiver of important constitutional right Rule 61(i)(5) is available to him."
There is no evidence in the record that Flowers knowingly waived his Sixth Amendment right to counsel or to confront his accusers by waiving the § 3507 foundation requirements. As noted by this Court in Taylor, the burdens of Rule 61(i)(5), while high, are not insurmountable.
Because the constitutional nature of the claim is "manifest" and Flowers has presented a "colorable claim, " it is appropriate for the Court to consider it under Rule 61(i)(5). When a petitioner makes a "colorable claim, " further inquiry is required.Thus, as a threshold matter, the requirements of Rule 61(i)(5) have been satisfied and the procedural bars of Rule 61(i)(1), (2) or (3) are inapplicable.
The Court will now address the merits of each of Flowers' claims.
Flowers' alleges that Trial Counsel was ineffective for failing to object to the admission of the five out of court witness statements into evidence, pursuant to § 3507. Flowers argues the State failed to establish the proper legal foundation prior to admission of the § 3507 statements, because none of the witnesses were asked on direct examination if the statement given about the event was truthful, or not.
The Court's review of the record reveals that none of the five witnesses were asked, nor testified about, the truthfulness of their prior recorded § 3507 statements during direct examination. Thus, the question before the Court is twofold: (1) was the witness required to testify as to the truthfulness of the prior statement as a foundational condition to its admission under § 3507 in 2003, and (2) assuming the State had not established the proper foundation, was Trial Counsel's failure to object to the admission of the § 3507 statements objectively unreasonable and prejudicial?
1. Deficient performance analysis under Strickland.
Title 11 Del. C. § 3507 has received extensive scrutiny from the Delaware Supreme Court over the last 45 years. First enacted in enacted in 1970 as § 3509, it was changed to § 3507 with the 1974 Delaware Code revisions. The first examination of the statute by the Delaware Supreme Court was in Keys v. State, which established the general foundation requirements for admission of a statement pursuant to § 3507. The foundational issue of "truthfulness" was not before the Court in Keys. However, in 1991, the Delaware Supreme Court in Ray v. State, held that a "witness' statement [under § 3507] may be introduced only if the two-part foundation is first established: the witness testifies about both the events and whether or not they are true."  Shortly thereafter, in the 1993 case Feleke v. State, the Delaware Supreme Court again ...