Submitted: November 9, 2016
Christopher S. Koyste, Esquire
Mr. Payne and Mr. Koyste:
before the Court are postconviction matters in this case.
Alonzo J. Payne ("defendant") filed a motion for
postconviction relief pursuant to Superior Court Criminal
Rule 61 ("Rule 61"). Christopher S. Koyste, Esquire
was appointed to represent defendant in connection with that
motion ("Postconviction Counsel"). Postconviction
Counsel has filed a motion to withdraw. Because
defendant's Rule 61 motion contains no valid claims, it
shall be summarily dismissed. This is my decision granting
Postconviction Counsel's motion to withdraw and denying
the motion for postconviction relief.
February 26, 2014, a jury found defendant guilty of the
charges of robbery in the first degree, possession of a
firearm during the commission of a felony, and tampering with
physical evidence. It found him not guilty of a charge of
conspiracy in the second degree. On May 23, 2014, defendant
was declared an habitual offender pursuant to 11 Del.
C. § 4214(a). He was sentenced as follows. As to
the robbery in the first degree conviction, he was sentenced
as an habitual offender to 25 years at Level 5. With regard
to the possession of a firearm during the commission of a
felony conviction, he was sentenced as an habitual offender
to 25 years at Level 5. On the conviction for tampering with
physical evidence, he was sentenced to two years at Level 5,
suspended for 1 year of probation at Level 3.
appealed to the Supreme Court, which affirmed the judgment
below. The thorough recitation of the facts in
the Supreme Court's decision follows.
(2) On August 16, 2013, Darryl Hutt ("Hutt") left
work and cashed his weekly paycheck of $280 at the Service
General. Hutt then walked to the apartment of Ashley Drummond
("Ashley") to find his cousin Shawn Smith
("Smith"). When Hutt arrived at the apartment,
Smith was not there, but Ashley's brother Yahi Drummond
("Yahi"), her cousin Teuntay Drummond
("Teuntay"), and Payne were there. Shortly after
Smith arrived, Hutt and Smith left the apartment.
(3) Smith and Ashley had been arguing throughout the day and
continued to argue over the phone after Smith left the
apartment. Yahi overheard the argument and called Smith.
During that conversation, Smith told Yahi that he and Hutt
were going to the Service General to cash Smith's
paycheck. Once they arrived, Smith went inside, and Hutt
remained in the car to count his money. A black Cadillac
pulled into a nearby parking spot. Three males got out and
approached Hutt's window. Hutt testified that he was
"struck" and then felt a "snatch on [his] leg,
" after which his money was gone. When Hutt looked up,
he noticed that a man wearing a white shirt and red shorts
had a gun pointed at him.
(4) Smith exited the Service General while the three men were
walking back to the Cadillac. Smith recognized the three men
as Payne, Teuntay, and Yahi. Smith testified that Payne was
wearing a white shirt and red shorts. Hutt told Smith that
the three men had just robbed him. Smith approached Payne and
asked for the money back. Payne refused, and the three men
drove off in the Cadillac. Later, Smith and Hutt went back to
Ashley's apartment to ask for the money back, but Payne
(5) Smith and Hutt reported the incident to the Georgetown
Police Department. In addition to describing Payne's
white shirt and red shorts, Hutt reported that, of the money
stolen, one of the twenty-dollar bills and one of the
ten-dollar bills were torn. The police responded immediately.
Upon arriving at Ashley's apartment complex, officers
identified Payne by his clothing. One of the officers drew
his weapon and ordered everyone to put their hands up. Payne
ran into Ashley's apartment. About thirty seconds to a
minute later, Payne reappeared at the front door and then
exited the apartment. One of the officers then took Payne
into custody. When the police searched Ashley's
apartment, they found a black revolver under a couch. Tamara
Midgette ("Midgette"), who was inside Ashley's
apartment during the arrest, testified that Payne ran into
the apartment, hid something under the couch, and gave her
$179. FN 1 The money the officers recovered from Midgette
included a twenty-dollar bill and a ten-dollar bill with
tears matching those Hutt described.
FN 1 Detective Bradley Cordrey testified that $129 was
removed from Midgette and then an additional $50 was
recovered "where she had hidden it in another
location." Midgette testified that, "[Payne] had
ran in and hid something under the couch and hid on the floor
and threw me $130."
appeal, defendant argued " that the trial court should
have declared a mistrial because a witness informed the jury
of Payne's previous incarceration." This disclosure
occurred during an exchange between defendant's trial
counsel and Smith where Smith stated he did not know
defendant until later because defendant was "locked
up" when Smith started dating Ashley Drummond. This
Court immediately struck the phrase "locked up" and
told the jury to disregard it. Defendant's trial counsel
then moved for a mistrial; the trial court denied the motion.
Defendant argued on appeal that this denial was an abuse of
discretion. The Supreme Court employed a
Pena analysis where it weighed:
"(1) the nature and frequency of the comments; (2) the
likelihood of resulting prejudice; (3) the closeness of the
case; and (4) the sufficiency of the trial judge's
efforts to mitigate any prejudice." FN 8
FN 8 Smith v. State, 963 A.2d 719, 723 (Del. 2008).
analyzing all four Pena factors, the Supreme Court
concluded that the trial court was within its discretion in
denying defendant's motion for a mistrial.
Supreme Court's mandate was dated April 15, 2015.
Defendant filed his postconviction motion on May 15, 2015. In
that motion, he asserts the following claims.
Denial the Jury the right to see victims [sic] statements
Judge denies the Jury note after my Attorney and Prosecutor
agreed to the victims [sic] statement.
Effective Assistance of Counsel
My attorney never put in no [sic] motions that I ask him to
put in on my behalf. Did not represent me as he should on his
Fail to properly identify me (suspect) The victim never
Identified me in trial.
Hearsay testimony/hearsay grounds
The state witness testimony in court was by what victim has
told him was not done from face value.
Victim inconsistents [sic] statement/contradictory
The victim court testimony was inconsistent with his police
Evidence was insufficient.
Defendant and another was [sic] arrested wearing clothes
similar according to victim court testimony.
interjecting of pass [sic] life style
ther [sic] were a lots [sic] of mentioning about the
defendant's prior record in the hearing of Jury.
noted earlier, Postconviction Counsel has filed a motion to
withdraw, affirming that he found no meritorious issues of
law after thoroughly analyzing the record and defendant's
was provided the opportunity to respond to Postconviction
Counsel's motion to withdraw but did not do so.
reviewing the claims, I set forth several standards which are
applicable to this postconviction motion: those pertaining to
procedural bars and those pertaining to ineffective
assistance of counsel claims.
I review the procedural bars; if a procedural bar applies to
an argument, then that argument should not be considered on
applicable version of Rule 61 is that made effective June 4,
2014. That rule provides in pertinent part with regards to
the procedural bars:
(i) Bars to relief. ~
(1)Time limitation. - A motion for postconviction relief may
not be filed more than one year after the judgment of
conviction is final or, if it asserts a retroactively
applicable right that is newly recognized after the judgment
of conviction is final, more than one year after the right is
first recognized by the Supreme Court of Delaware or by the
United States Supreme Court.
(2) Successive motions. - ***.
(3) Procedural default. - Any ground for relief that was not
asserted in the proceedings leading to the judgment of
conviction, as required by the rules of this court, is
thereafter barred, unless the movant shows
(A) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant's rights.
(4) Former adjudication. - Any ground for relief that was
formerly adjudicated, whether in the proceedings leading to
the judgment of conviction, in an appeal, in a postconviction
proceeding, or in a federal habeas corpus proceeding, is
(5) Bars inapplicable. ~ The bars to relief in paragraphs
(1), (2), (3), and (4) of this subdivision shall not apply
either to a claim that the court lacked jurisdiction or to a
claim that satisfies the pleading requirements of
subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this
above-referenced pleading requirements of subparagraphs
(2)(i) or (2)(ii) of subdivision (d) of Rule 61 provide;
(i) pleads with particularity that new evidence exists that
creates a strong inference that the movant is actually
innocent in fact of the acts underlying the charges of which
he was convicted; or
(ii) pleads with particularity a claim that a new rule of
constitutional law, made retroactive to cases on collateral
review by the United States Supreme Court or the Delaware
Supreme Court, applies to the movant's case ...