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State v. Lewis

Superior Court of Delaware

November 5, 2018

STATE OF DELAWARE, Plaintiff,
v.
KAHLIL D. LEWIS, Defendant.

          Submitted: August 6, 2018

         COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED AND RULE 61 COUNSEL'S MOTION TO WITHDRAW SHOULD BE GRANTED.

          Kathryn S. Keller, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Christopher S. Koyste, Esquire, Law Offices of Christopher S. Koyste, LLC, Attorney for Defendant Kahlil D. Lewis.

          LYNNE M. PARKER, COMMISSIONER

         This 5th day of November, 2018, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court as follows:

         BACKGROUND AND PROCEDURAL HISTORY

         Defendant Kahlil D. Lewis was arrested on April 30, 2013 and indicted on June 24, 2013. He was charged with the following offenses: one count of Murder Second Degree, two counts of Possession of a Firearm During the Commission of a Felony ("PFDCF"), one count of Reckless Endangering First Degree, and one count of Possession of a Firearm by a Person Prohibited ("PFBPP"). The PFBPP charge was pursuant to 11 Del. C. § 1448.

         These charges stemmed from a confrontation between Defendant Lewis and Toney Morgan which ended in the death of Toney Morgan.

         An information was filed on December 18, 2013 and a re-indictment was issued on December 23, 2013 modifying the PFBPP count to PFBPP pursuant to 11 Del. C. § 1448(e)(2). The re-indictment alleged that Mr. Lewis had negligently caused the death of Mr. Morgan while in possession of a firearm as a person prohibited (hereinafter referred to as "PFBPP-NCD").

         Mr. Lewis admittedly is a person prohibited from possessing a firearm. Mr. Lewis admittedly killed Toney Morgan with a firearm. Mr. Lewis contended, nonetheless, that he was not guilty of PFBPP-NCD because he only possessed the firearm momentarily and used it only in self-defense, having wrestled it away from Morgan, who was attacking him. The Superior Court charged the jury that if Defendant Lewis only possessed and used the weapon momentarily in self-defense, then he was not guilty of PFBPP, The parties submitted their respective positions on the availability of a justification defense at trial in relation to the PFBPP charge. On November 20, 2013, the Superior Court ruled that the justification defense was available on the PFBPP charge.[1]

         Against the advice of counsel, Lewis rejected the State's various plea offers on December 16, 2013, December 18, 2013 and January 6, 2014.[2]

         On December 27, 2013, Mr. Lewis filed a pro se letter requesting that new counsel be appointed. The court denied the request without prejudice in a January 2, 2014 letter/order.[3]

         The State dismissed two of the five indicted charges prior to trial: the murder and related weapons charge. Trial began on January 7, 2014 with the State proceeding on the remaining three charges: Reckless Endangering First Degree, PFDCF, and PFBPP-NCD. The defense's mid-trial motion for judgment of acquittal was denied by the court.[4]

         Following a six-day jury trial, on January 14, 2014, the jury acquitted Lewis of the first two charges, Reckless Endangering First Degree and PFDCF. The jury convicted Lewis of PFBPP-NCD.

         Lewis filed a motion for judgment of acquittal on January 17, 2014, which was denied by the court.[5] In addition to the motion for acquittal, filed by counsel, Lewis had written letters to the court. The court's Order denying the motion for judgment of acquittal also addressed and denied the claims raised by Lewis in his pro se letters to the court.[6]

         On November 20, 2014, Lewis filed a Petition for a Writ of Habeas Corpus which was denied by the court on December 10, 2014.[7]

         On February 13, 2015, Lewis was sentenced on the PFBPP-NCD conviction to twenty-five years at Level V, suspended after seven years for decreasing levels of supervision. Defendant Lewis was also sentenced contemporaneously for a violation of probation stemming from a drug dealing conviction for which he received eight years at Level V.[8]

         Defendant Lewis filed a direct appeal to the Delaware Supreme Court. On August 4, 2016, the Delaware Supreme Court affirmed the judgment of the Superior Court.[9]

         FACTS

         The facts of the incident at issue were set forth by the Delaware Supreme Court in its decision on Lewis' direct appeal.[10]

         As stated by the Delaware Supreme Court, on April 27, 2013, Lewis drove to the 600 block of Jefferson Street in Wilmington in search of people who attacked his friend the day before.[11] When he arrived, Lewis found several adults and children hanging around the street. Words were exchanged, and shots were fired. During the exchange of gunfire, one of the people on the street, Toney Morgan, was shot dead. Witnesses claimed they saw Lewis shoot Morgan. Lewis was also shot in the face, though it was never established who shot him.[12]

         RULE 61 MOTION AND COUNSEL'S MOTION TO WITHDRAW

         Lewis filed a timely pro se motion for postconviction relief and request for the appointment of counsel on July 26, 2017. Rule 61 counsel was appointed and given leave to amend Lewis' pro se motion. On October 11, 2017, Lewis filed a. pro se motion for amendment of Rule 61.

         On July 9, 2018, assigned counsel filed a Motion to Withdraw as Postconviction Counsel pursuant to Superior Court Criminal Rule 61(e)(6). 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.

         In the motion to withdraw, Lewis' 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.[13] Counsel further represented that, following a thorough review of the record, counsel was not aware of any other substantial claim for relief available to Lewis.[14] Lewis' Rule 61 counsel represented to the court that there are no potential meritorious grounds on which to base a Rule 61 motion and has therefore sought to withdraw as counsel.[15]

         On July 9, 2018, Lewis' Rule 61 counsel advised Lewis of his motion to withdraw and advised Lewis that he had the right to file a response thereto within 30 days, if Lewis desired to do so.[16] Despite the fact that over 90 days has elapsed, Lewis has not responded to counsel's pending Motion to Withdraw.

         In order to evaluate Lewis' Rule 61 motion and to determine whether his 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 Lewis' Rule 61 motion. In addition, the court should conduct its own review of the record in order to determine whether Lewis' Rule 61 motion is so totally devoid of any, at least, arguable postconviction claims.[17]

         DEFENDANT'S RULE 61 MOTION IS WITHOUT MERIT

         Lewis raised a number of claims in his pro se motion for postconviction relief, which he filed on July 26, 2017, and amended on October 11, 2017.

         Before addressing each of Lewis' claims in turn, it is important to note that some of the claims raised herein are procedurally barred either because the claim had been previously adjudicated on direct appeal or because Lewis failed to raise the claim on direct appeal as required.

         It is also important to emphasis that the evidence at trial against Lewis was overwhelming. A witness observed a person running from the scene of the shooting, wiping blood from his face and hiding a gun on top of her neighbor's outdoor grill.[18]Lewis was suffering from a gunshot wound to his face and wearing clothing matching the witness' description.[19] A blood trail lead directly from the scene of the shooting to the outdoor grill (where the gun was hidden).[20] A 9-millimeter firearm was found on top of the grill and contained Lewis' DNA.[21] Lewis' DNA was also found on the blood trail leading from the scene to the grill, blood on the gun, blood on the grill, and blood around the area of the grill.[22]

         Four 9-millimeter shell casings found at the scene of the shooting were confirmed as being fired from the 9-millimeter gun found hidden on the grill.[23] A 9-millimeter bullet recovered from Mr. Morgan's thigh wound could have been fired from the recovered 9-millimeter gun.[24]

         Several witnesses present at the scene of the shooting testified that they either saw Lewis pull out a gun and begin shooting or saw Lewis walk up to the congregated individuals and engage in a conversation and/or argument.[25]

         Lewis testified at trial that he engaged in a physical struggle with Mr. Morgan after he heard a click he believed to be from a gun and in wrestling with Mr. Morgan for control of the gun, it went off.[26]

         Despite the procedural bars and overwhelming evidence, each of Lewis' claims will be discussed in turn.

         Claim I: Trial Counsel Was Ineffective for Failing to Contest the Re-Indictment

         In Lewis' pro se Rule 61 submission, Lewis claims that trial counsel was ineffective for failing to contest the re-indictment issued two weeks before trial.

         To prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-prong standard of Strickland v. Washington.[27] This test requires that defendant prove that trial counsel's performance was objectively unreasonable and that the defendant was prejudiced as a result.[28]

         Under the first prong, judicial scrutiny is highly deferential. Courts must ignore the distorting effects of hindsight and proceed with a strong presumption that counsel's conduct was reasonable.[29] The Strickland Court explained that a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.[30]

         Under the second prong, it is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.[31] In other words, not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.[32] Some errors will have a pervasive effort and some will have had an isolated, trivial effect.[33] The movant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.[34] A reasonable probability is a probability sufficient to undermine confidence in the outcome.[35] The court must consider the totality of the evidence and must ask if the movant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.[36]

         Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice.[37] 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.[38] Moreover, there is a strong presumption that defense counsel's conduct constituted sound trial strategy.[39]

         In Harrington v. Richter, [40] 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 a fair trial.[41] Counsel's representation must be judged by the most deferential of standards.[42]

         Turning now to Lewis' first claim, Lewis claims that counsel was ineffective for failing to contest the re-indictment issued two weeks before trial. Lewis raised this issue on direct appeal and the Delaware Supreme Court fully adjudicated whether the re- indictment was valid and properly issued.[43] This issue having already been fully adjudicated is now procedurally barred as previously adjudicated.[44]

         On June 24, 2013, the Grand Jury indicted Lewis on, inter alia, a charge of PFBPP in violation of 11 Del.C. § 1448.[45] On December 23, 2013, Lewis was re-indicted. The re-indictment added an allegation that while Defendant, a person prohibited, possessed the firearm, he negligently caused Morgan's death in violation of 11 Del.C .§ 1448(e)(2).[46] Two weeks after the re-indictment, on January 7, 2014, Lewis went to trial.

         Unknown to the State or Lewis, the General Assembly mistakenly repealed § 1448(e)(2) on July 18, 2013. It appears that when it amended parts of the previous subsection of §1448, the General Assembly inadvertently struck the language of § 1448(e)(2) and then enacted the bill.[47]

         Although a violation of § 1448(e)(2) was a crime when the April 27, 2013 shooting and death occurred and when the Grand Jury first indicted Lewis on June 23, 2013, it was not a crime in December 2013 when the Grand Jury re-indicted Lewis and included the new charge. The General Assembly re-enacted § 1448(e)(2) on January 30, 2014, noting that it had been mistakenly repealed.[48]

         On direct appeal, Lewis argued that the Superior Court should have dismissed the § 1448(e)(2) charge in the December 2013 re-indictment because § 1448(e)(2) was repealed at the time of the re-indictment, and Lewis suffered prejudice as a result of having the charge added so close to trial.[49]

         Following a full, thorough and detailed analysis, the Delaware Supreme Court held that under Delaware's saving statute, 11 Del.C. §211(a), the State could indict Lewis for violating § 1448(e)(2) because the crime was committed before repeal of the statute. The timing of the indictment, and the General Assembly's mistaken repeal, did not impact the validity of the indictment.[50]

         As to Lewis' claim that the re-indictment should not have been allowed so close to the trial date, the Superior Court held that there was no reason to prevent it. The more serious felony was closely related to the original charges and the re-indictment did not come as a surprise to defense counsel.[51] The Superior Court held that there was not any good faith basis for defense counsel to oppose the re-indictment nor to request a trial continuance.[52] While the re-indictment was to Lewis' disadvantage, it was not unfairly prejudicial.[53] Moreover, the Delaware Supreme Court, in affirming the decision of the Superior Court, further held that the Grand Jury's indictment two weeks before trial was not plain error, Lewis was properly re-indicted and convicted under § 1448(e)(2).[54]

         Trial counsel cannot be deemed ineffective for failing to contest the re-indictment, because the Superior Court already held, and the Delaware Supreme Court already affirmed, that the re-indictment was valid. Moreover, the Superior Court already held that defense counsel did not have a good faith basis to oppose the re-indictment or to request a continuance. This claim is without merit.

         Claim II: Failure to Request a Self-Defense Instruction on the PFBPP-NCD Charge

         In Lewis' pro se Rule 61 submission, Lewis claims that trial counsel was ineffective for failing to request a self-defense instruction on the charge of PFBPP-NCD.

         On direct appeal, the Delaware Supreme Court held that the Superior Court properly declined to give a self-defense instruction on the PFBPP-NCD charge as there was no basis under the factual record and relevant law to give this instruction on this charge.[55] Trial counsel cannot be deemed ineffective in failing to request a self-defense instruction on the PFBPP-NCD charge, when there was no basis to request that this instruction be given. This claim is without merit.

         Claim III: Superior Court Abused its Discretion in Sentencing Lewis

         In Lewis' pro se Rule 61 submission, Lewis claims that the Superior Court abused its discretion by sentencing him with a closed mind. This claim was already raised, considered, and rejected by the Delaware Supreme Court on direct appeal.[56] This issue having already been fully adjudicated is now procedurally barred as previously adjudicated.[57]

         Claim IV: Counsel Failed to Share Discovery

         Following Lewis' initial pro se Rule 61 submission on July 26, 2017, Lewis sought to amend his Rule 61 motion on October 11, 2017 and raise a number of additional claims. The first additional claim that Lewis sought to raise was that trial counsel failed to share discovery with him which allegedly prevented him from preparing a defense.

         A protective order was issued by the Superior Court on August 26, 2013.[58] Under the terms of the protective order, trial counsel was prohibited from disclosing any identifying information of any third party to Lewis, Lewis' family or associates, without leave of the Court.[59] Trial counsel was also prohibited from using the identifying information to contact or attempt to contact the witnesses directly or indirectly without leave of the Court.[60] Thus, trial counsel was prohibited from providing discovery to Lewis.

         The protective order was only recently modified, on April 6, 2018, to permit Lewis access to discovery.[61] Once the protective order was modified, counsel provided Lewis with a copy of his complete discovery with victim/witness addresses, telephone numbers and places of employment redacted, Prior to sentencing, Lewis filed a complaint with the Office of Disciplinary Counsel ("ODC") against trial counsel for failing to provide him with witness statements. ODC summarily dismissed the complaint after trial counsel responded noting that there was a protective order in place which prevented him from doing so.[62]

         Even if trial counsel had been permitted to provide discovery to Lewis, he was under no legal obligation to do so. There is no obligation of counsel to provide material given in discovery to the defendant. While it is good practice, there is no constitutional requirement to do so.[63] Moreover, now that Lewis has been provided with the complete discovery provided to counsel, he has not identified any information contained in the discovery that he was previously unaware of that would have aided in his defense.

         Lewis has failed to establish that his trial counsel was deficient or that he suffered actual prejudice as a result thereof. This claim is without merit.

         Count V; Trial Counsel Failed to File Certain Motions

         Lewis claims that trial counsel was ineffective by failing to file motions to suppress the gun, for a proof positive hearing and for an evidentiary hearing.

         An ineffective assistance of counsel claim based on the failure to file a motion is without merit if trial counsel lacked a legal or factual basis to do so.[64]

         Lewis has not explained what the purpose of an evidentiary hearing would have been, why one was needed or what issues would have been addressed during it. Conclusory, unsupported and unsubstantiated allegations are insufficient to establish a claim of ineffective assistance of counsel.[65] Lewis has not ...


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