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Goode v. State

Supreme Court of Delaware

July 5, 2018

JHAVON GOODE, Defendant Below-Appellant,
v.
STATE OF DELAWARE, Plaintiff Below-Appellee.

          Submitted: April 13, 2018

          Court Below-Superior Court of the State of Delaware ID. No. 1404008621A (S)

          Before VALIHURA, VAUGHN, and SEITZ, Justices.

          ORDER

          James T. Vaughn, Jr., Justice

         Upon consideration of the parties' briefs and the record on appeal, it appears to the Court that:

         (1) The appellant, Jhavon Goode, filed this appeal from the Superior Court's letter order, dated September 20, 2017, denying his first motion for postconviction relief.[1] After careful consideration, we find no merit to Goode's claims of ineffective assistance of counsel on appeal. Thus, we affirm the Superior Court's judgment.

         (2) The record reflects that a Superior Court jury convicted Goode in January 2015 of Assault in the First Degree, Possession of a Firearm During the Commission of a Felony, and Carrying a Concealed Deadly Weapon for the shooting of Jason Terry. Before his scheduled sentencing date, police officers discovered a gun, which was confirmed to match shell casings found at the crime scene. The Superior Court postponed Goode's sentencing to allow defense counsel the opportunity to conduct further testing of the weapon and, if warranted, to file a motion for a new trial.

         (3) The DNA testing of the gun was not completed by the time of the next status conference, so defense counsel requested another continuance. The Superior Court denied the request and proceeded with sentencing, noting that if testing yielded some result that might require a new trial, Goode could raise the issue on appeal and request a remand. The Superior Court then sentenced Goode to a total period of twenty-five years at Level V incarceration, with credit for time served, to be suspended after serving thirteen years in prison for decreasing levels of supervision. This Court affirmed Goode's convictions and sentence on direct appeal.[2]

         (4) With the assistance of court-appointed counsel, Goode filed his first timely motion for postconviction relief, raising four claims of ineffective assistance of counsel. After obtaining trial counsel's affidavit, the State's response, and Goode's reply, the Superior Court rejected all of Goode's claims. This appeal followed.

         (5) Goode raises three claims in his opening brief on appeal.[3] First, he contends that his counsel on appeal was ineffective for failing to challenge the Superior Court's denial of his proposed jury instruction regarding eyewitness identification. Second, Goode contends that his trial counsel was ineffective for eliciting prejudicial hearsay testimony from the victim during cross-examination. Finally, he contends that his counsel was ineffective for failing to file a motion for a new trial based on the results of additional testing of the gun.

         (6) This Court applies the Strickland[4] standard in reviewing claims of ineffective assistance of counsel in a timely first postconviction proceeding. Under Strickland, Goode must demonstrate that: (a) his counsel's conduct fell below an objective standard of reasonableness; and (b) there is a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different.[5] Goode is required to set forth and substantiate concrete allegations of cause and actual prejudice.[6] Moreover, there is a "strong presumption" that counsel's representation was professionally reasonable.[7]

         (7) Goode's first argument is that his counsel on direct appeal was ineffective for failing to challenge the Superior Court's refusal to give his proposed jury instruction regarding eyewitness identification.[8] The record reflects that defense counsel requested that the Superior Court give the following instruction on eyewitness identification:

An issue is this case is the identification of the defendant. To find the defendant guilty, you must be satisfied, beyond a reasonable doubt, that the defendant has been accurately identified, that the wrongful conduct charged in this case actually took place, and that the defendant was in fact the person who committed the act. If there is any reasonable doubt about the identification of the defendant, you must give the defendant the benefit of such doubt and find the defendant not guilty.
Identification testimony is an expression of belief or impression by the witness. Its value depends upon the opportunity of the witness to observe the offender at the time of the offense, retain that memory and to make a reliable identification later. In appraising the identification testimony of Jason Terry you should consider the following:
1. Whether Mr. Terry had the capacity and an adequate opportunity to observe the offender, at the time of the offense.
Whether the witness had an adequate opportunity to observe the offender at the time of the offense will be affected by such matters as how long or short a time existed for the witness to make an observation, the distance between the witness and the person identified, lighting conditions, the witnesses [sic] attention, whether the witness had occasion to see or know the identified person previously.
2. Was the in-court identification made by Jason Terry a product of his own recollection? You may consider both the strength of the identification, and the circumstances under which the in-court identification was made. If the identification by Jason Terry [was] influenced by circumstances under which the Defendant was presented to him for identification, you should scrutinize the identification with great care. You may also consider the length of time that lapsed between the occurrence of the crime and the next opportunity for Jason Terry to see the Defendant as a factor bearing on the reliability of the identification.
3. Finally, you must consider the credibility of Jason Terry's identification of the Defendant in the same way as any other witness, considering whether they are truthful, and considering whether they had the capacity and opportunity to make a reliable observation on the matter in their testimony.
If you are not convinced beyond a reasonable doubt that the Defendant was the person who committed the crime, you must find the Defendant not guilty.

         (8) The first paragraph of Goode's proposed instruction reflected the language of the Superior Court's pattern jury instruction on eyewitness identification. The additional paragraphs of the proposed instruction were added by defense counsel, who conceded that, to counsel's knowledge, such an instruction had never been given to a Delaware jury. The Superior Court rejected Goode's proposed instruction in favor of giving the pattern instruction. The Superior Court concluded that the pattern instruction was a correct statement of the law and that the additional paragraphs constituted argument that defense counsel could raise in his closing argument to the jury.

         (9) A defendant has an unqualified right to have the jury instructed with a correct statement of the substance of the law.[9] But, a defendant is not entitled to a particular jury instruction.[10] This Court will not reverse a trial court's jury instruction on appeal if the instruction was "reasonably informative" and not misleading ...


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