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Smith v. State

Supreme Court of Delaware

May 24, 2018

DAMON SMITH, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: March 7, 2018

          Court Below: Superior Court of the State of Delaware I.D. No. 1309013274 (N)

          Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

          ORDER

          James T. Vaughn, Jr. Justice.

         On this 24th day of May 2018, upon consideration of the parties' briefs and the record on appeal, it appears to the Court that:

         (1) Appellant, Damon Smith ("Smith"), appeals from a Superior Court denial for postconviction relief. He contends that the Superior Court erred when it denied his request for postconviction relief for ineffective assistance of counsel.

         (2) On September 18, 2013, at 6:00 p.m. New Castle County Police Department Officer Michael Zolnowski went to 172 Winder Road in New Castle, Delaware, to investigate a report of a fight in progress involving a firearm. While en route, he learned that individuals involved in the fight had fled in a gold Honda Accord. A black male wearing a white t-shirt and blue jeans was present during the altercation and in possession of a black revolver. Officer Zolnowski responded to another location where an off-duty officer had stopped the gold Honda Accord.

         (3) Antonia Brown was the driver of the Honda Accord and Smith was in the passenger seat. Smith was wearing a white t-shirt and blue jeans. Underneath the Accord's passenger seat was a black revolver. Smith was arrested.

         (4) Antonia Brown told the officers that she, Smith, and her boyfriend, John Smith ("John"), who was Smith's nephew, had gone to her mother's house at 172 Winder Road. Angela Brown (Antonia's mother), her fiancé Derrick Byrd, and her minor son Ty Brown were at 172 Winder Road. Angela stated that she was in her house and saw two men exit the vehicle, John, and a man who was later determined to be Smith. Angela observed John pull a black revolver from his waistband and wave it at Byrd, who was in front of the house. Angela testified that John and Smith passed the gun back and forth, both waving it at Byrd. Byrd retreated into the house and Angela watched as John yelled at Byrd from outside. John hurled insults and accused Byrd of hitting Russel Brown, Angela's son.

         (5) Eventually, Angela exited the house making her way along the driveway and began to argue with her daughter Antonia. Sometime during the argument Angela's ex-husband Anthony Brown and his girlfriend Cache Clifton arrived on the scene. Clifton yelled at Angela, but kept her distance from the house. After the argument concluded, Antonia and Smith left in the gold Honda Accord. Angela did not see where John went.

         (6) Byrd told Officer Zolnowski that John and Damon Smith had passed the revolver back and forth, both waving the gun at him and Angela. Byrd also said John fled on foot, and Smith was the last to possess the handgun.

         (7) Smith was indicted on two counts of Possession of a Firearm During the Commission of a Felony ("PFDCF"), two counts of Aggravated Menacing, one count of Possession of a Deadly Weapon by a Person Prohibited ("PDWBPP"), two counts of Conspiracy Second Degree, and one count of Carrying a Concealed Deadly Weapon. The conspiracy charges were dismissed after a preliminary hearing.

         (8) On March 12, 2014, the Superior Court issued a Scheduling Order, scheduling case reviews for March 17, 2014 and June 30, 2014. Trial was scheduled for July 8, 2014. At his second case review, Smith rejected a plea offer made by the State. The morning of Smith's trial he pled guilty to one count of Aggravated Menacing and one count of PFDCF. As part of the plea offer, Smith agreed to be sentenced as an habitual offender. On October 3, 2014, the State filed a motion to declare Smith an habitual offender.

         (9) The State's motion to declare Smith an habitual offender was granted, and the Superior Court sentenced Smith to ten years at Level V with no probation to follow. On July 20, 2015, Smith filed a pro se motion for correction/modification of sentence, which was denied by the Superior Court on August 12, 2015. On December 18, 2015, Smith filed a motion for postconviction relief claiming ineffective assistance of counsel. As a basis for his ineffective assistance of counsel claim, Smith asserted that trial counsel: (1) did not subpoena any witnesses; (2) failed to file a motion to suppress evidence at Smith's request; (3) failed to obtain an earlier sentence recommendation from the earlier rejected plea offer; (4) was unaware of Smith's ...


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