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Tucker v. State
Supreme Court of Delaware
November 3, 2017
LYNELL B. TUCKER, Defendant Below-Appellant,
STATE OF DELAWARE, Plaintiff Below-Appellee.
Submitted: August 29, 2017
Corrected: November 3, 2017
Below-Superior Court of the State of Delaware Cr. ID
STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.
F. TRAYNOR, JUSTICE.
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. 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). 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
(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
(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. 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.
(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
(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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