SUBMITTED: July 31, 2017
Jhavon Good ("Defendant") has filed his first
Motion for Postconviction Relief pursuant to Superior Court
Criminal Rule 61 ("Rule 61"). For the reasons
expressed below the motion is DENIED.
January 15, 2015, after a jury trial, Defendant was found
guilty of one count of Assault in the First Degree, one count
of Possession of a Firearm During the Commission of a Felony
("PFDCF"), and one count of Concealed Carry of a
Deadly Weapon. On May 29, 2015, Defendant was sentenced
as follows: for Assault in the First Degree, to serve five
years at Level Five; for PFDCF, to serve 15 years at Level
Five, suspended after eight years for six months at Level
Four, followed by two years at Level Three; and for Concealed
Carry of a Deadly Weapon, to serve five years at Level Five,
suspended for two years at Level Three. Defendant filed an
appeal to the Delaware Supreme Court on June 2, 2015. The
Supreme Court affirmed the conviction on April 26, 2016.
September 12, 2016, Defendant filed his first Postconviction
Motion. However, Defendant's counsel at the time, Patrick
J. Collins, Esq., stated that the Motion was only intended to
toll the time for filing. He needed additional time to review
Defendant's file for any potential postconviction claims.
The Court allowed Mr. Collins until December 30, 2016 to file
any amendments to his Motion. The Court granted Mr.
Collins' request for a 30 day extension. Later, Mr.
Collins withdrew his representation of Defendant. After
reviewing all pertinent information, Mr. Collins believed
that no claims for postconviction relief could be ethically
advocated. He was replaced by Michael W. Modica, Esq. Mr.
Modica filed this Amended Rule 61 Motion for Postconviction
Relief on March 16, 2017. In the amended Motion, Defendant
made several claims of ineffective assistance of counsel.
Therefore, his trial counsel, John P. Daniello, Esq., was
required to submit an affidavit pursuant to Rule 61(g) in
response. He did so on May 24, 2017. On June 27, 2017, the
State filed its response to Defendant's Motion. Lastly,
on July 31, 2017, Defendant filed his Reply to the
Defendant claims that the Superior Court should have
suppressed the out-of-court identification of Defendant by
the victim, Jason Terry, based upon a photograph of Defendant
Terry was shown by his cousin. He claims that the
identification was unreliable because it was made after
Terry's cousin showed him a picture of Defendant and
informed him that, according to the word on the street,
Defendant was bragging about having shot someone.
Additionally, he asserts that the identification's
probative value was outweighed by unfair prejudice, and
should have been excluded on that basis. Both the Superior
Court and the Delaware Supreme Court found that the
identification procedures did not violate Defendant's
Defendant argues that he suffered a due process violation
under the Fifth and Fourteenth Amendments when the Superior
Court denied his proposed jury instruction regarding
eyewitness identification. According to Defendant, the
pattern jury instruction on identifications was insufficient
because eyewitness identifications present special problems
not encountered with run of the mill out-of-court
identifications. Therefore, Defendant was deprived of his
Sixth Amendment right to counsel when his attorney
unreasonably failed to raise this issue on direct appeal.
Defendant asserts that his trial counsel was ineffective
because he elicited prejudicial hearsay during Terry's
cross-examination. In Defendant's view, counsel should
have anticipated the risk of Terry responding to his
questioning by mentioning the comment his cousin made about
Defendant's alleged bragging. By failing to request a
curative instruction, counsel caused prejudice to Defendant.
However, Defendant fails to mention that the Court gave a
sua sponte curative instruction immediately after
the hearsay statements were introduced.
Defendant claims his trial counsel was ineffective by failing
to move for a new trial based upon new evidence obtained
between the trial and sentencing. The gun allegedly used in
the shooting was recovered after the trial. The sentencing
date was pushed back to allow for DNA testing. The results
were inconclusive. Yet, Defendant claims that the newly
discovered gun was exculpatory evidence that necessitated a
first step in evaluating a motion under Rule 61 is to
determine whether any of the criteria listed in Rule 61(i)
will force the motion to be procedurally
barred. All of Defendant's claims are barred
by Rule 61(i)(4) because they have been formerly adjudicated.
cannot be disputed that the out-of-court identification issue
has already been adjudicated. Both the Superior Court and the
Supreme Court have held that the identification was
proper. The action that called the validity of the
identification into question was taken by the victim's
cousin, Raye Boone, not the police. Therefore, the Supreme
Court stated, "...that some state actor must be involved
in procuring a suggestive identification before requiring the
trial court to undertake a preliminary due process
analysis...The police were not involved in the
identification, which ends the constitutional inquiry. We
also note that Goode availed himself of all the procedural
protections available to ensure a fair
trial." In short, the Supreme Court found that the
Superior Court was correct in declining to suppress the
identification. Thus, Defendant's claim is barred by Rule
61(i)(4), as it has already been adjudicated.
Defendant's argument concerning jury instructions
relating to eyewitness identifications was previously
adjudicated. Defendant requested an alternative jury
instruction be read to the jury regarding eyewitness
identifications. The Court denied this request, reasoning
that it constituted argument. Instead, the Court read the
pattern jury instruction entitled "Identification of
Defendant." This issue was addressed and decided by the
Superior Court during trial. As a result, Defendant is barred
from raising this issue by Rule 61(i)(4).
the hearsay issue was considered and disposed of by the
Supreme Court. The Supreme Court addressed Defendant's
argument by stating:
Although Terry did begin to repeat things that Boone had
said, the Superior Court quickly halted the testimony and
instructed the jury to disregard his statements. In this
situation, the trial judge's prompt instruction for the
jury to disregard the statements cured any error. Further, it
was Goode who later on cross-examination elicited testimony
about what Boone said. Goode ...