Amended Order: July 12, 2017
Defendant Below, Damon Smith's Motion for Post Conviction
Honorable Calvin L. Scott, Jr. Judge
Damon Smith filed this Motion for post conviction relief
claiming that his trial counsel provided ineffective
assistance for failing to subpoena witnesses. Defendant was
charged with Aggravated Menacing, Possession of a Firearm
during the Commission of a Felony, Possession of a Firearm by
a Person Prohibited, and Carrying a Concealed Deadly Weapon.
These charges arose from an incident on September 18, 2013
where Defendant and his co-defendant brought a gun to
confront individuals. Defendant's co-defendant plead
guilty on July 7, 2014, and Defendant plead guilty the
following day. Defendant claims that trial counsel provided
ineffective assistance by telling the Defendant on the day of
trial that he had no subpoenaed any witnesses.
Court must address Defendant's motion in regard to Rule
61(i) procedural requirements before assessing the merits of
his motion. Rule 61(i)(1) bars motions for
postconviction relief if the motion is filed more than one
year from final judgment. Defendant's Motion is not time
barred by Rule 61(i)(1).Rule 61(i)(2) bars successive
postconviction motions, which is also not applicable as this
is Defendant's first postconviction motion. Rule 61(i)(3)
bars relief if the motion includes claims not asserted in the
proceedings leading to the final judgment. This bar is also
not applicable as Defendant claims ineffective assistance of
counsel, which could not have been raised in any direct
appeal.Finally, Rule 61(i)(4) bars relief if the
motion is based on a formally adjudicated
ground. This bar is also not applicable to
adopted the two-prong test proffered in Strickland v.
Washington to evaluate ineffective assistance of counsel
claims. To succeed on an ineffective assistance of
counsel claim, a petitioner must demonstrate that
"counsel's representation fell below an objective
standard of reasonableness, and that there is a reasonable
probability that but for counsel's unprofessional errors,
the result of the proceeding would have been
different." The Court's "review of
counsel's representation is subject to a strong
presumption that representation was professionally
reasonable." The "benchmark for judging any claim
of ineffectiveness [is to] be whether counsel's conduct
so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced
a just result." Additionally, it is the attorney's
"right to decide certain strategic and tactical
decisions, including what witnesses to call, whether and how
to conduct cross-examination, what trial motions should be
made, and what evidence should be
introduced." Here, Defendant's trial counsel
filed an Affidavit in response to Defendant's Motion for
Postconviction Relief. Trial counsel states that after being
supplied with a list of possible witnesses to the matter,
trial counsel took the following steps. Trial counsel's
investigator interviewed possible witness Anthony Brown.
After the interview, counsel determined that Mr. Brown's
statements were vague and he was not a key witness to the
entire incident. Thus counsel decided not to call Mr. Brown
as a witness. Trial counsel also averred that possible
witness Antonia Brown was present in the courtroom before
trial and trial counsel interviewed Ms. Brown prior to trial.
Defendant's co-defendant, John Smith, entered into a plea
before Defendant's trial. Trial counsel had Mr. Smith
transported to the courthouse before trial, and notified Mr.
Smith's counsel that he was being called to testify.
However, before trial, Mr. Smith's counsel notified
Defendant's trial counsel that Mr. Smith was invoking his
Constitutional Right and would not to testify. Finally, as to
possible witness Cache Clifton, trial counsel's
investigator interviewed Ms. Clifton on January 6, 2014. Ms.
Clifton was more than 500 to 1000 feet away from the
incident, and trial counsel determined that she was not a key
witness to the event and thus did not subpoena her for an
appearance. Based on trial counsel's affidavit, that it
is trial counsel's tactical decision to call witnesses,
and the heavy presumption trial counsel acted reasonably,
Defendant's Motion for Postconviction Relief is hereby
Super. Ct. Crim. R. 61(i)(1).
Super. Ct. Crim. R. 61(i)(2).
Super. Ct. Crim. R. 61(i)(3).
See State v. Berry, 2016 WL
5624893, at *4 (Del. Super. Ct. June 29, 2016);see also
Watson v. State, 2013 WL 5745708, at *2 ...