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State v. Britt

Superior Court of Delaware

January 11, 2018

STATE OF DELAWARE, Plaintiff,
v.
KEVIN BRITT, Defendant.

          Submitted: October 26, 2017

          Martin B. O' Conner, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Edward F. Eaton, Esquire, 716 North Tatnall Street, Suite 400, Wilmington, Delaware, 19801, Attorney for Defendant.

         COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED AND COUNSEL'S MOTION TO WITHDRAW SHOULD BE GRANTED.

          Lynne M. Parker Commissioner

         This 11th day of January, 2018, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND AND PROCEDURAL HISTORY

         1. On August 19, 2013, Defendant Kevin Britt was indicted on charges of Home Invasion, Carrying a Concealed Deadly Weapon, six counts of Reckless Endangering First Degree, seven counts of Possession of a Firearm during the Commission of a Felony ("PFDCF"), and Possession of Ammunition by a Person Prohibited.

         2. Following a two-day bench trial held on May 13-14, 2014, the trial court convicted Britt of Carrying a Concealed Deadly Weapon, three counts of Reckless Endangering First Degree, and three counts of PFDCF. The trial court acquitted Britt of the following charges: Home Invasion, three counts of Reckless Endangering, and four counts of PFDCF. The Possession of Ammunition by a Person Prohibited charge was dismissed prior to trial.

         3. On August 1, 2014, following a pre-sentence investigation, Britt was sentenced to a total of 32 years at Level V, suspended after serving 9 years, followed by decreasing levels of probation.

         4. Defendant filed a direct appeal to the Delaware Supreme Court. On April 28, 2015, the Delaware Supreme Court determined that the appeal was without merit and affirmed the judgment of the Superior Court.[1]

         FACTS

         5. The facts are recited herein as set forth by the Delaware Supreme Court on Britt's direct appeal.[2] On June 1, 2013, Rene Jamison was living in a residence on Concord Avenue in New Castle County with her father, Joseph Custis, and her eight children: Jhireique Sutherland ("Sutherland")- age 20; Jhaquez Toston ("Toston")- age 18; Andre-age 15; Abu- age 13; Angelo, Jr.- age 6; Angelina Warner- age 5; Angelow- age 5; and Angelino- age 3.[3]

         6. That day, June 1, 2013, Britt knocked on the front door of the home and asked five-year-old Angelina, "Where's your brother?" When Angelina asked Britt which of her brothers he was looking for, he replied, "Any of them." Angelina told Britt that her brother Toston was in the shower. Britt replied, "[T]ell him to come here; I'm not playing, " and said that he "got a strap, " meaning that he had a gun. Angelina closed the door and Britt left.[4]

         7. Sutherland was in his bedroom to the side of the front door and could see and hear the exchange between Angelina and Britt through a window. Sutherland testified that he saw what he believed to be a gun in Britt's pocket, and that Britt was wearing a blue or grey t-shirt over a long-sleeved thermal shirt, [5]

         8. Approximately twenty minutes later, Britt returned and knocked loudly on the door. When Jamison opened the door slightly, Britt covered his face, pulled a gun out of his pants, and reached the gun into the house. Jamison slammed the door shut, but caught Britt's wrist between the door and the doorframe.[6]

         9. As Jamison struggled to keep the door closed she yelled, "My babies are in here, " but Britt continued pointing his gun at Jamison and yelled at her to get off the door. During the struggle, a single shot was discharged from the gun. The bullet struck and damaged some molding near the front door.[7]

         10. At the time of the gunshot, Angelino was asleep on Jamison's bed, Custis was in the basement, Toston and Angelo, Jr. were upstairs in Toston's room, Angelow and Sutherland were either inside or in front of Sutherland's room on the ground floor, and Angelina was crying at the top of the stairway leading from the front doorway to the second floor.[8]

         11. After several minutes of trying to keep the door closed, Jamison finally let go and ran out the back door with Angelow and Angelina. Britt then fled the scene. Jamison called 9-1-1 and Wilmington police responded. Detective Malcolm Stoddard took Sutherland in the back of his unmarked police car to look for a possible suspect in the area of 23 rd and West Street, where Sutherland said he had seen the shooter in the past. Sutherland spotted Britt among a group of people in the area and identified him as the shooter. Britt was then taken into custody.[9]

         12. At the time of his arrest, Britt was wearing a grey t-shirt over a white, long-sleeve thermal shirt, and police found a blue t-shirt on the ground nearby. Police also recovered a revolver from the backyard of a nearby home. The revolver contained six live rounds and one spent casing. DNA swabs from the revolver matched Britt's DNA profile and one other unknown contributor. Forensic testing also showed the presence of gunshot residue on both of Britt's hands.[10]

         13. At the conclusion of the two-day bench trial, the Superior Court found Britt guilty of three counts of Reckless Endangering, and the related PFDCF counts, as to the three persons that Britt knew were in the residence- Jamison, Toston and Angelina Warner. Britt was also convicted of CCDW. The trial court acquitted Britt of Home Invasion; and the remaining Reckless Endangering and related PFDCF counts, as to those occupants of the home that Britt did not know were present.

         RULE 61 MOTION AND COUNSEL'S MOTION TO WITHDRAW

         14. On April 11, 2016, Defendant filed a pro se motion for postconviction relief. Defendant was thereafter assigned counsel.

         15. On March 17, 2017, assigned counsel filed a Motion to Withdraw as Postconviction Counsel pursuant to Superior Court Criminal Rule 61(e)(6).

         16. Superior Court Criminal Rule 61(e)(6) provides that:

If counsel considers the movant's claim to be so lacking in merit that counsel cannot ethically advocate it, and counsel is not aware of any other substantial ground for relief available to the movant, counsel may move to withdraw. The motion shall explain the factual and legal basis for counsel's opinion and shall give notice that the movant may file a response to the motion within 30 days of service of the motion upon the movant.

         17. In the motion to withdraw, Defendant's Rule 61 counsel represented that, after undertaking a thorough analysis of the Defendant's claims, counsel has determined that the claims are so lacking in merit that counsel cannot ethically advocate any of them.[11] Rule 61 counsel further represented that, following a thorough review of the record, counsel was not aware of any other substantial claim for relief available to Defendant.[12] Defendant's Rule 61 counsel represented that there are no potential meritorious grounds on which to base a Rule 61 motion and therefore sought to withdraw as counsel.[13]

         18. On April 6, 2017, Defendant's Rule 61 counsel submitted to the court additional points for consideration that Britt wanted the court to consider as part of his Rule 61 motion.[14]

         19. Following the receipt of Defendant's additional points for consideration, the court requested Defendant's Rule 61 counsel to advise whether counsel still sought to withdraw or whether counsel's position had changed in light of the additional points for consideration.[15]

         20. By letter dated April 18, 2017, Defendant's Rule 61 counsel advised the court that after consideration of the additional points for consideration raised by Defendant, Rule 61 counsel still remained unable to assert any meritorious postconviction claims and that he continued to stand by his motion to withdraw.[16]

         21. The court then requested that Defendant's trial counsel submit an Affidavit responding to the ineffective assistance of counsel claims raised by Defendant, and that the State respond to the claims raised by Defendant in his Rule 61 motion. Trial counsel submitted an Affidavit, the State submitted a response, and Britt submitted responses thereto.

         22. In order to evaluate Defendant's Rule 61 motion and to determine whether Defendant's Rule 61 counsel's motion to withdraw should be granted, the court should be satisfied that Rule 61 counsel made a conscientious examination of the record and the law for claims that could arguable support Defendant's Rule 61 motion. In addition, the court should conduct its own review of the record in order to determine whether Defendant's Rule 61 motion is so totally devoid of any, at least, arguable postconviction claims.[17]

         DEFENDANT'S RULE 61 MOTION IS WITHOUT MERIT

         23. In Britt's Rule 61 motion, he claimed that his trial counsel and appellate counsel were ineffective for failing to file a motion to suppress the handgun discovered by the police in a nearby backyard, and for failing to challenge the admissibility of the handgun on appeal. In addition, Britt has supplemented his motion with additional points for consideration.

         24. In order to prevail on an ineffective assistance of counsel claim, Defendant must meet the two-pronged Strickland test by showing that: (1) counsel performed at a level "below an objective standard of reasonableness" and that, (2) the deficient performance prejudiced the defense.[18] The first prong requires the defendant to show by a preponderance of the evidence that defense counsel was not reasonably competent, while the second prong requires him to show that there is a reasonable probability that, but for defense counsel's unprofessional errors, the outcome of the proceedings would have been different.[19]

         25. Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice.[20] Although not insurmountable, the Strickland standard is highly demanding and leads to a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance.[21] Moreover, there is a strong presumption that defense counsel's conduct constituted sound trial strategy.[22]

         26. In Harrington v. Richter,[23] the United States Supreme Court explained the high bar that must be surmounted in establishing an ineffective assistance of counsel claim. In Harrington, the United States Supreme Court explained that representation is constitutionally ineffective only if it so undermined the proper functioning of the adversarial process that the defendant was denied ...


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