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Tucker v. State

Supreme Court of Delaware

November 3, 2017

LYNELL B. TUCKER, Defendant Below-Appellant,
v.
STATE OF DELAWARE, Plaintiff Below-Appellee.

          Submitted: August 29, 2017

          Corrected: November 3, 2017

         Court Below-Superior Court of the State of Delaware Cr. ID 1109012280A (N)

          Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.

          ORDER

          GARY F. TRAYNOR, JUSTICE.

         This 3rd day of November 2017, upon consideration of the appellant's Supreme Court Rule 26(c) brief, his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:

(1) In 2013, a jury convicted the defendant-appellant, Lynell Tucker, of Murder in the First Degree and Possession of a Firearm During the Commission of a Felony. The Superior Court sentenced Tucker to life imprisonment plus a term of years. This Court affirmed his convictions and sentence on direct appeal.[1] Tucker filed a motion for postconviction relief and a motion for appointment of counsel in April 2015. The Superior Court appointed counsel in May 2015. Appointed counsel requested and received an extension of time to review the case and to file either an amended motion for postconviction relief or a motion to withdraw as counsel under Superior Court Criminal 61(e)(6).[2] Ultimately, appointed counsel filed a motion to withdraw as counsel along with a supporting memorandum. Tucker filed a response to counsel's motion. The Superior Court granted counsel's motion to withdraw and denied Tucker's motion for postconviction relief on February 20, 2017. This appeal followed.
(2) This Court appointed a different attorney to represent Tucker on appeal. After review, Tucker's appellate counsel has filed a brief and a motion to withdraw under Rule 26(c). Appellate counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, appellate counsel informed Tucker of the provisions of Rule 26(c) and provided him with a copy of the motion to withdraw and the accompanying brief. Tucker also was informed of his right to supplement his attorney's presentation.
(3) In response to appellate counsel's motion and brief, Tucker raised several issues for this Court's consideration. He contends that the lawyers appointed to represent him in the postconviction proceedings in the Superior Court and on appeal have provided ineffective assistance by failing to brief the issues that Tucker wanted them to argue. Those meritorious arguments, according to Tucker, are that: (i) the public defenders appointed to represent him at trial were subject to a conflict of interest; (ii) trial counsel was ineffective for failing to communicate with him regarding witness statements; and (iii) trial counsel was ineffective for failing to pursue the defense strategy that Tucker wanted to pursue.[3] The State has responded to Tucker's points, as well as to the position taken by Tucker's counsel, and has moved to affirm the Superior Court's judgment.
(4) The standard and scope of review applicable to the consideration of a motion to withdraw and an accompanying brief under Rule 26(c) is twofold: (a) this Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for arguable claims; and (b) this Court must conduct its own review of the record and determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation.[4]
(5) At trial, the State presented evidence that, on September 14, 2011, Dominique Helm ("Helm") was shot in the back outside his mother's home in Wilmington. Helm's mother, Nicole, testified that before the shooting she was standing in her kitchen and heard her son arguing with someone. She looked out the window and saw two men, whom she identified in court as Lynell Tucker and his father, Tony Dunn. The two men approached her son and told him to go back inside his house. Nicole opened the window and told her son to come inside. She was walking toward her front door when she heard her son trying to open the door. Nicole heard a shot, her front door opened, and her son stepped through the door and collapsed. The forensic expert testified that Helm died from a single gunshot wound to his back.
(6) Helm's cousin, Devin Marsh, testified at trial that he and Helm were hanging out on the porch of Shakeem Davis. Davis lived in his grandmother's house, which was across the street from Helm. Marsh testified that Tucker came along and had words with Helm and Marsh. Tucker drove off in a green truck but returned on foot a few minutes later. When he returned, Tucker approached Helm, again exchanged words with him and then punched Helm in the face. A scuffle ensued. During the fight, Tucker was on top of Helm. Dunn appeared and began hitting Helm. When the physical fight ended, Helm and Tucker continued to argue. Tucker then pulled out a gun and shot Helm.
(7) Davis also testified. He stated that Helm was his cousin because Davis' father and Helm's father are brothers. He also testified that Tucker is his cousin because Dunn is his mother's brother. At trial, Davis stated that he was hanging out with Helm on the day of the murder. He saw Tucker earlier in the day but claimed not to have seen him later. The State offered into evidence a taped statement that Davis had made to police the day after the murder. The trial court allowed the taped statement into evidence over defense counsel's objections. In that statement, Davis told police that he had been hanging out on his porch with Helm when Tucker approached and told them that anyone who was not a "Dunn" had to leave. According to Davis' statement, Tucker left and then came back with his father. Davis was inside the house when he heard a gunshot. He ran outside, saw Tucker and Dunn standing in the area, and saw Helm in the doorway of his mother's house, apparently bleeding.
(8) Another witness, Shawn Whalen, testified that he was standing on his porch smoking a cigarette on the night in question when he saw Helm, whom he knew, in an altercation with another man, whom he did not know. During the fight, Whalen saw a third man run over and push Helm away. Whalen heard Helm say to the man with whom he had been fighting, "You're lucky your ...

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