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State v. Clay

Superior Court of Delaware, Sussex

December 7, 2018

State of Delaware
v.
Christopher Clay

          Date Submitted: November 5, 2018

         Dear Counsel:

         This is my decision on Christopher Clay's timely-filed Amended Motion for Postconviction Relief. Clay was convicted of Robbery in the First Degree, Possession of a Firearm During the Commission of a Felony, Conspiracy in the Second Degree, Tampering with Physical Evidence, and Resisting Arrest. Clay's convictions arose out of the robbery by him, Maurice Land and Booker Martin of the Dollar General store in Georgetown, Delaware. I sentenced Clay to 49 years and six months at supervision level 5, suspended after serving 40 years and six months at supervision level 5 for probation. The Supreme Court vacated Clay's conviction for Tampering with Physical Evidence, but affirmed his convictions as to the other four charges.[1]

         STATEMENT OF THE FACTS

         Clay's convictions arose out of an armed robbery of the Dollar General store in Georgetown, Delaware. On August 9, 2014, an employee of the Dollar General store in Georgetown, Delaware was taking a register till to her office shortly before 9:00 p.m. As she entered her office, a man wearing a black hat and a t-shirt that said "Security" on the back approached her in her office while displaying a black handgun. He ordered her to give him the money from the register till she had and another till that was in the office. After she did so, he told her to get on the ground. The man then exited the store and the employee called the police.

         Shortly after the robbery occurred, Corporal Joel Diaz of the Georgetown Police Department observed three black males run across the street. Corporal Diaz testified that his attention was initially drawn to the men because a series of robberies had taken place in the area. As Corporal Diaz continued to observe the men, a call came over his radio that a robbery had taken place at the Dollar General store, which was a quarter of a mile away from his location. The radio call described the suspect as a black male dressed in all black and possibly armed with a handgun. Corporal Diaz realized that one of the three men that he was observing was dressed in all black. The officer approached the men, rolled down his window and asked them to stop. At first, the men ignored him, but when Corporal Diaz stopped and exited his vehicle, one of the men, later identified as Christopher Clay, ran. Corporal Diaz radioed to other officers to pursue Clay and ordered the other two men, later identified as Maurice C. Land and Booker T. Martin, to stop.

         Corporal Diaz and another Georgetown Police officer, Officer Derrick Calloway, were eventually able to detain Land and Martin. As Land was getting on the ground, he removed his shirt, which was black with "Security" written across the back in yellow letters. The officers also found a black baseball cap on the sidewalk near where Land had been standing. At the time of his arrest, Land had a latex glove and $81 in cash on his person. Martin had $897 in cash in his pocket in three bundles that were folded and organized by denomination.

         While Corporal Diaz and Officer Calloway were with Land and Martin, Officer John Wilson was responding to Corporal Diaz's call to pursue Clay. Officer Wilson saw Clay running in the opposite direction of his car. He exited the vehicle and began chasing Clay on foot. Clay continued to run, and Officer Wilson observed him raise his hand into the air. Officer Wilson testified:

I didn't know if [Clay] was going to run like he was going to turn or if he was throwing something. And I thought -I did think I saw something leave his hand, but the lights are - it was dark; my overheads on my police car are on; everything's flashing.

         Clay eventually got into a parked vehicle, and Officer Wilson ordered him out of the vehicle at gunpoint. Clay had $280 in cash in his pocket, folded and organized by denomination, and $ 1.17 in change. Officers later recovered a black handgun on the opposite side of a fence near where Officer Wilson observed Clay making a throwing motion.

         Security footage from the Dollar General store showed Clay entering the store with Land shortly before 9:00 p.m. Land went to the back of the store and into the office, where surveillance cameras recorded him putting on a clear glove and taking money out of an employee's wallet. When the employee entered the office, Land pointed a handgun at her and demanded the money from the register tills. He then made her get on the ground, and he left the office. As Land was in the back of the store, Clay placed several items on the counter. Four seconds after Land left the store, Clay followed without purchasing any of those items.[2]

         A joint trial for Clay and his co-defendants was held. All three of the defendants were subsequently convicted at trial. Martin's convictions, except for a misdemeanor Resisting Arrest charge, were later vacated and dismissed pursuant to a post-trial Motion for Judgment of Acquittal.

         DISCUSSION

         This is Clay's first motion for postconviction relief and it was filed in a timely manner. Clay argues that his trial counsel was ineffective because he (1) did not renew his motion to sever when it became clear that Land's trial counsel was going to introduce testimony at trial regarding a number of robberies in Baltimore, Maryland; (2) did not object to the testimony at trial regarding the robberies in Baltimore, Maryland, or seek a mistrial when the testimony came in, or request a limiting jury instruction regarding the testimony before the case went to the jury, or appeal the admission of the testimony to the Supreme Court; and (3) did not file a motion for a new trial after Land submitted a post-trial affidavit stating that Clay and Martin had nothing to do with the robbery. Clay's trial counsel and the State have filed affidavits in response to Clay's allegations.

         Clay submitted four different arguments in his pro se motion for postconviction relief. I then appointed postconviction counsel for Clay. Clay's postconviction counsel did not advance any of them. Therefore, I have considered Clay's four pro se arguments to be abandoned. The United States Supreme Court has established the proper inquiry to be made by courts when deciding a motion for postconviction relief.[3] In order to prevail on a claim for ineffective assistance of counsel pursuant to Superior Court Criminal Rule 61, the defendant must engage in a two-part analysis.[4]First, the defendant must show that counsel's performance was deficient and fell below an objective standard of reasonableness.[5] Second, the defendant must show that the deficient performance prejudiced the defense.[6] Further, a defendant "must make and substantiate concrete allegations of actual prejudice or risk summary dismissal."[7]

         To establish prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the outcome."[8] To establish a reasonable probability of a different result, the defendant needs to "show a 'probability sufficient to undermine the confidence in the outcome,' a standard lower than 'more likely than not."'[9] Moreover, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."[10] It is also necessary that the defendant "rebut a 'strong presumption' that trial counsel's representation fell within the 'wide range of reasonable professional assistance,' and this Court must eliminate from its consideration the 'distorting effects of hindsight when viewing that representation.'"[11]

         Claim One - Motion to Sever

         Clay argues that his trial counsel was ineffective because he did not renew his motion to sever Clay's trial from that of his co-defendants when it became apparent before trial that Land's counsel was going to introduce at trial evidence of supposedly similar robberies in Baltimore. Clay argues that this evidence allowed the jury to conclude that Clay was part of a gang that had committed a series of robberies in Baltimore and also had robbed the Georgetown Dollar General store.

         The Baltimore Robberies - Pre-trial

         I held a pre-trial hearing regarding issues involving the authenticity of the videotape of the Georgetown Dollar General store robbery. At that hearing, Karl Woody, a Dollar General store loss ...


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