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State v. Puller

Superior Court of Delaware

August 13, 2018

KLEON J. PULLER, Defendant.

          Submitted: July 30, 2018

          Sean P. Lugg, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Kleon J. Puller, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.



         This 13th day of August 2018, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:


         1. On March 1, 2001, after a three-day trial, a Superior Court jury found Defendant Kleon J. Puller guilty of Attempted Murder in the First Degree, Possession of a Firearm During the Commission of a Felony, and Endangering the Welfare of a Child. Puller was sentenced to life for his attempted murder conviction, five years of incarceration for his possession of a firearm conviction, and one year of probation for endangering the welfare of a child conviction.

         2. On February 5, 1999, Puller shot his girlfriend in the head with a .357 Magnum revolver while his five-year-old niece was in the room. Puller admitted to shooting his girlfriend in the face, but claimed it was an accident.[1] He testified that he put the gun to her head in order to scare her but did not realize the gun was loaded. He pulled the trigger after she said, "Go ahead and shoot it." According to Puller, he expected to hear only a "click", but was "in shock" when he heard a "bang."[2] To disprove Puller's contention, the State relied on eyewitnesses, medical testimony about the nature of his girlfriend's wounds, and a videotape of the crime scene.[3] Puller's shot blew off a large part of his girlfriend's face, including both of her eyes. Although the victim survived, she is blind, severely disfigured, and brain damaged.[4]

          3. Puller appealed, and the Delaware Supreme Court affirmed his convictions and sentences on April 5, 2002.[5]

         4. On January 5, 2012, Puller filed a Rule 61 motion for postconviction relief. Counsel was appointed to assist Puller with that Rule 61 motion. On October 1, 2013, Rule 61 counsel filed a motion to withdraw because he concluded that Puller's claims were without merit and he did not find the existence of any other meritorious claims for relief. Puller responded to Rule 61 counsel's motion to withdraw and raised a number of additional claims in further support of his Rule 61 motion.

         5. On July 8, 2014, a Superior Court Commissioner issued his Report and Recommendation recommending that Puller's Rule 61 motion be denied and that counsel's motion to withdraw be denied as moot.[6] On August 21, 2014, the Superior Court found Puller's objections to the Commissioner's Report and Recommendation to be without merit and adopted the Commissioner's Report and Recommendation in its entirety.[7] The Delaware Supreme Court affirmed that decision on January 30, 2015.[8]

         6. Puller raised a number of claims, including a number of ineffective assistance of counsel claims, in his Rule 61 motion.[9] Those claims included contentions that counsel was ineffective for not requesting a jury instruction that the shooting was accidental; that the jury instructions were improper; and that the State failed to prove all the elements of Attempted Murder in the First Degree.[10]

          7. Trial counsel's Affidavit in response to that Rule 61 motion explained at length the trial strategy. Trial counsel explained that the defense's claim was that Puller was reckless in causing these very serious injuries to his girlfriend by drunkenly pulling the trigger of a gun that he mistakenly thought was unloaded. As such, the defense claimed that Puller was not guilty of Attempted Murder and only guilty of the lesser charge of Assault First Degree.[11] The jury was instructed on the lesser-included offense of Assault First Degree.[12]

         8. The issue at trial was not whether Puller was the shooter. It was undisputed that he was. The issue was whether the shooting was "reckless" and he should be found guilty of Assault First Degree or "intentional" and he should be found guilty of Attempted Murder in the First Degree.

         9. In this case, the jury was given the option of determining whether Puller's actions were "reckless" or "intentional", and the jury determined Puller intentionally attempted to kill the victim.[13] The jury determined that Puller's conduct was intentional not reckless and they convicted him of Attempted Murder in the First Degree.

         10. On April 15, 2015, Puller filed a federal petition for habeas corpus.[14] In that petition, Puller raised twelve ineffective assistance of counsel claims. On May 16, 2016, the federal court denied Carter's petition for habeas relief as time-barred.[15]


         11. On July 23, 2018, Puller filed the subject Rule 61 motion. In his motion, he claims that his First Degree Attempted Murder Conviction should be vacated and he should be found guilty of Assault First Degree or Reckless Endangering instead. Puller claims that he did not have the requisite intent to be found guilty cf First Degree Attempted Murder. He claims that his actions were "reckless" rather than "intentional." Puller contends that the "court lacked jurisdiction" to convict him of First Degree Attempted Murder since his conduct was "reckless" rather than "intentional", and that he can raise this "jurisdictional" claim at any time. Puller also claims that his counsel was ineffective for not requesting a Reckless Endangering jury instruction at trial.

         12. Puller cites to Class v. United States, 138 S.Ct. 798 (2018), for the proposition that he can raise the constitutionality of his conviction for First Degree Attempted Murder, at any time. In Class v. United States, the defendant, who pled guilty to a criminal offense, challenged the constitutionality of the statute for which he was convicted. The federal government contended that by pleading guilty the defendant waived his right to challenge the constitutionality of his conviction. The ...

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