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State v. Romeo

Superior Court of Delaware

February 21, 2019

STATE OF DELAWARE
v.
COURTLAND ROMEO, Defendant.

          Date Submitted: October 19, 2018

         Upon Defendant's Supplemental Amended Motion for Postconviction Relief: DENIED

          Natalie S. Woloshin, Esquire, Woloshin, Lynch, and Natalie P.A., Attorney for the Defendant.

          Martin B. O'Connor, Deputy Attorney General, Delaware Department of Justice, Attorney for the State.

          Martin B. O'Connor, Esquire Natalie S. Woloshin, Esquire

          OPINION

          JURDEN, P.J.

         TABLE OF CONTENTS

         I. INTRODUCTION..............................................................................................4

         II. BACKGROUND...............................................................................................4

         Naimah King.........................................................................................................5

         King's Police Interview.....................................................................................6

         King's Trial Testimony.....................................................................................6

         Sheila Mayo..........................................................................................................8

         Sheila's Police Interview...................................................................................8

         Sheila's Trial Testimony...................................................................................9

         Sheila's 3507 Statement..................................................................................11

         Ray Mayo............................................................................................................13

         Ray's Police Interview....................................................................................13

         Ray's Trial Testimony.....................................................................................17

         Frederick Holden................................................................................................19

         Holden's Police Interview...............................................................................19

         Holden's Trial Testimony...............................................................................22

         Holden's 3507 Statement................................................................................23

         Christina Thomas................................................................................................24

         Thomas's Police Interview..............................................................................25

         Thomas's Trial Testimony..............................................................................25

         Thomas's 3507 Statement...............................................................................26

         III. PROCEDURAL HISTORY.........................................................................27

         Defendant's Claims....................\.......................................................................29

         IV. DISCUSSION.................................................................................................31

         Standard of Review.............................................................................................31

         Procedural Bars to Postconviction Relief...........................................................35

         Ground One and Ground Two: Admissibility of Holden and Sheila's 3507

         Statements...........................................................................................................38

         The Introduction of Holden and Sheila's 3507 Statements............................38

         Detective Solge's Testimony on Holden and Sheila's 3507 Statements........46

         Ground Three: Cross-Examination of King......................................................60

         Ground Four: Ricochet Theory..........................................................................62

         Rule 6l(i)(4) Interest of Justice Exception.....................................................65

         Ground Five: Cross-Examination of Holden and Sheila...................................73

         Ground Six: Appellate Counsel.........................................................................75

         V. CONCLUSION................................................................................................77

         I. INTRODUCTION

         A jury convicted Courtland Romeo ("Romeo")[1] of First Degree Murder and Possession of a Firearm During the Commission of a Felony ("PFDCF") on November 9, 2009.[2] On January 29, 2010, he was sentenced to life imprisonment for Murder First Degree and twenty years for PFDCF.[3]

         Before the Court is Romeo's second motion for postconviction relief, filed on May 27, 2014, in which he claims ineffective assistance of trial and appellate counsel.[4] Because his claims are either procedurally barred or otherwise do not entitle him to relief, Romeo's second motion for postconviction relief is DENIED.

         II. BACKGROUND

         On the evening of June 1, 2007, Wilmington police officers responded to a 911 call near the intersection of South Harrison Street and Elm Street.[5] Upon arrival, officers discovered a crowd gathered around Antoine Mayo ("Antoine")[6]who was lying in the street, bleeding from his head.[7] Shortly thereafter, an ambulance took Antoine to a hospital where he was pronounced dead.[8] The Deputy Chief Medical Examiner determined that Antoine died from a penetrated gunshot wound to the arm and chest and the injuries that resulted.[9]

         Naimah King

         Naimah King ("King"), [10] the mother of Antoine's son, [11] testified that she, Romeo, and others spent the day drinking alcohol at a friend's house on South Harrison Street.[12] Later that evening, King and Antoine agreed to meet at around 9:30 p.m. near the corner of South Harrison and Elm Street so that he could take her children home.[13] Romeo accompanied King and her children on the walk down the street to meet Antoine.[14] King testified that when they reached Antoine, Romeo and Antoine exchanged words and Romeo smirked at Antoine.[15] After the verbal exchange, Antoine's cousin, Ray Mayo ("Ray"), arrived and a physical altercation ensued among the members of the group.[16]

         King's Police Interview

         In her video-recorded interview with police, King said that during the fight "something dropped out of [Romeo's] pocket" and then she realized Romeo was holding a gun.[17] King stated that Romeo first shot at the ground, "[b]ut when he shot at the ground, [Antoine] fell."[18] According to King:

[Romeo] shot one round. [Antoine] fell 'cause [Romeo] was shooting at the ground first. [Antoine] fell to the ground, so I'm thinking, okay, he just got shot in the leg. He's fine.
So I'm just thinking [Romeo] shot his leg. So I'm calling an ambulance, so they can come get [Antoine], and then [Romeo] shot again. He shot three rounds. He shot three rounds. Two at the ground and then he shot again but Antoine was on the ground. He shot again. ... He shot again and then that's when [Antoine] like completely dropped. Cause [sic] when [Romeo] shot the first two times, Antoine was just crawling on the ground talking about he shot me, he shot me. Then all of a sudden [Romeo] shot the third time and Antoine done fell and rolled over on his back and blood is coming out of his mouth.[19]

         King's Trial Testimony

         At trial, King testified about the fight and subsequent shooting. King testified that Antoine hit Romeo, causing Romeo to fall to the ground.[20] After Romeo was struck, King saw the gun on the ground by Romeo. King then watched Romeo grab the gun and start shooting. On direct-examination, King testified as follows:

Q: Did you notice any objects on the ground after [Romeo] gets struck?
A: Yes.
Q: What did you see?
A: A gun, cigarette, and a lighter.
Q: The gun, did you see the gun fall?
A: I heard the gun fall.
Q: What happens next?
A: [Romeo] grabbed the gun and shoots.
Q: And you see the gun go off?
A: Correct.
Q: In what direction is the shot when the gun goes off?
A: Aiming down (indicating).
Q: You're actually - you have your right arm now, and you're aiming it about a 4 o'clock position; is that right?
A: Correct.
Q: How did you know there's actually a bullet that came out?
A: I saw the sparks off the ground.
Q: What's the next thing that happened?
A: He gets his balance and fires again.
Q: He gets his balance, he fires again, and you made that same motion; was there anything different about the second shot?
A: It was straight (indicating). He was aiming, like...
Q: Okay. [Romeo's] arm was straight at this point?
A: Yes, it wasn't down no more. It was... (indicating).
Q: And with your arm, you're indicating what's more of the 3 o'clock position, straight across; is that correct?
A: Correct.
Q: Okay. And at the end of that, who is in front of that 3 o'clock, as your arm points that way?
A: Antoine.
Q: So, then, [Antoine] is standing at this point?
A: Not after the - not after that shot.
Q: Let's be clear: After the first shot, he's standing?
A: Correct.
Q: Now, the second shot, when it's directly across, at 3 o'clock, what do you see next?
A: Antoine falls to the ground saying, "I'm hit."
Q: Are there any other shots?
A: I don't remember.
Q: You don't remember whether or not there were other shots?
A: No.[21]

         King's video-recorded interview with police was not played during trial or introduced as evidence.

         Sheila Mayo

         On the evening of June 1, 2007, Antoine and his cousin, Sheila Mayo ("Sheila"), walked down Elm Street toward South Harrison Street to meet King at the corner.[22]

         Sheila's Police Interview

         In her video-recorded interview with police, Sheila detailed the moments immediately before the shooting and the shooting itself. Sheila stated that:

Ray was just standing there with [Antoine] and [Antoine] was waiting on [King] to come down the street.... I seen [sic] [Romeo] swing off and hit [Ray] and then that's when like they just start [fighting] ....
[Antoine] was still standing there. ... I got up off the step and went up there and was trying to break it up. So I was like stuck in between like five people fighting. ... So that's when [Romeo], he got up off the ground and pulled out his little gun. He shot at the ground first and then . . . [h]e shot again. When he shot that same time [Antoine] just hit the ground and was like he shot me, but I was thinking he got shot in his leg or something. We don't see no blood right then and [Romeo] shot again and that's when we seen [sic] blood start pouring out [of Antoine's] mouth.[23]

         Sheila's Trial Testimony

         At trial, Sheila testified about the events leading up to the shooting. In particular, she testified that before any shots were fired, "[Romeo] had the gun out and looked at [Antoine]" and then said to Antoine, "What are you going to do now?"[24] Then, with respect to the shooting, Sheila testified:

Q: How did you become aware that there was a gun at the scene?
A: Cause [sic] after the fight, [Romeo] pulled out a gun.
Q: [D]id you see [Antoine] strike [Romeo]?
A: Yes. When he pulled the gun out, that's when [Antoine] strike [sic] him.
Q: What was [Romeo's] reaction?
A: He fell and got up and started shooting.
Q: Did you see the gunfire?
A: Yes.
Q: And how many shots did you hear?
A: Three.
Q: [H]ow many of those shots did you see fire out [sic] the gun?
A: One.
Q: And in what order was the one that you saw?
A: The first one.
Q: And did you see who was holding the gun?
A: Yes.
Q: And who was that?
A: [Romeo].
Q: Did you see the position of his arm when he was holding the gun for the first shot?
A: Yes.
Q: And what position was that?
A: Like pointing towards the ground.
Q: And what was [Antoine's] reaction to the shot?
A: He told me he had been shot.
Q: Okay. Did you see [Antoine] fall?
A: Yes.
Q: Did you see any blood on [Antoine]?
A: Yes. .
Q: Where did you see the blood on [Antoine]?
A: Coming out [sic] his mouth.
Q: [D]o you remember what span of time it took for the three shots that you heard to be fired? Is it a long time? Is it a short time?
A: A short time.
Q: Okay, and was it within a couple of seconds or
A: Yes.
Q: -a minute -
A: -- a couple of seconds.
Q: A couple of seconds. Do you remember the succession of it? [W]ere there any pauses between the gunfire?
A: Yes.
Q: And if you can, using a pow-pow, you know, however it was, if you can explain to the jury the succession of the shots, adding any pauses.
A: It was pow, then pow-pow.
Q: So, it was that fast?
A: Yes.
Q: [Y]ou said you saw blood coming out of [Antoine's] mouth. Where was he positioned when you saw that?
A: He was laid [sic] on the ground.
Q: Okay. Did you speak with the police at Wilmington Police Department? A: Yes.
Q: Did you go to Wilmington Police voluntarily?
A: Yes.
Q: And do you remember speaking with Detective Solge?
A: Yes.
Q: Did you tell him everything that you remember that you had just seen?
A: Yes.
Q: And was that to the best of your recollection?
A: Yes.
Q: You said you saw the first shot fired, and the gun was pointing down. Did you see anything hit the ground?
A: No.[25]

         Sheila's video-recorded interview with police was not played at trial or introduced as evidence.

         Sheila's 3507 Statement

         Prior to the conclusion of Sheila's direct-examination, the State called the Chief Investigating Officer, Detective Solge ("Det. Solge") of the Wilmington Police Department, to testify about Sheila's out-of-court statement to police pursuant to 11 Del. C. § 3507 ("Section 3507").[26] On direct-examination, Det. Solge testified that Sheila told him the following: Q: And did [Sheila] tell you whether or not she saw the - the person firing the gun? A: She did.

Q: And did she tell you whether or not she saw the second shot fired?
A: She did.
Q: And did she tell you how she saw the second shot being fired?
A: She was directly looking at the shooter at the time he discharged the round.
Q: And did she tell you what the shooter's arm position was -
A: Yes.
Q: when he discharged the second round?
A: Yes.
Q: And what did she tell you?
A: Directly at [Antoine].
Q: Did she tell you whether or not she saw subsequent shots fired?
A: Yes.
Q: And did she tell you whether or not she saw the arm position of the shooter when the subsequent shots -
A: Yes, again [Antoine].
Q: Did you ask [Sheila] if she could identify the shooter?
A: Yes.
Q: And was she able to identify the shooter?
A: Yeah, she was.
Q: And how was she able to do that?
A: Through a photographic lineup.
Q: Detective, when [Sheila] told you that the second shot was pointed directly at Antoine Mayo, did she tell you what Antoine Mayo's position was at the time?
A: Standing upright in the street.
Q: Did she tell you that she saw [Antoine] fall?
A: Yes, she did.
Q: [D]id she tell you after which shot she saw [Antoine] fall?
A: The second shot, I believe.[27]

         On cross-examination, Romeo's trial counsel ("Trial Counsel") elicited the following testimony from Det. Solge regarding Sheila's interview with police:

Q: Detective, when you interviewed [Sheila], were you by yourself or were you with any other police officers?
A: There were two -1 guess you would - it would be safe to say there were two separate interviews of [Sheila], one with Detective Ciratella. I believe he was by himself with [Sheila] . . . and he exited the [room] and I went back in and interviewed her.
Q: For Detective Ciratella's interview, were you somewhere where you could see that interview, or were you doing something else in the investigation?
A: I was conducting another interview.
Q: And so when you came in, had Detective Ciratella already advise[d] you . . . of what [Sheila] had been saying, or did you just start fresh?
A: He advised me beforehand, before I conducted the second interview.[28]

         Noting that Det. Solge was struggling to recall "what it is that [Sheila] had to tell him," Trial Counsel had him review the transcript of Sheila's police interview.[29] After Det. Solge reviewed it, Trial Counsel questioned him about the details of Sheila's police interview, including relevant statements that appeared to conflict with her trial testimony.[30]

         Ray Mayo [31]

         Ray's Police Interview

         In his interview with police, Ray stated that on the evening of June 1, 2007, he received a call from his ex-girlfriend who informed him that Antoine was "getting in an argument with some boy."[32] Ray then called Antoine to "see what happened," and Antoine told him "some boys [sic] trying to murder me ... I need you to come home right now."[33] After arriving to the area of Elm and South Harrison Streets, Ray headed toward Antoine who was sitting on the front of a car parked on the street and talking on the phone with King to pick up their son.[34] Ray stated that, before King arrived, the shooter "appeared out of nowhere."[35] Ray told police:

[T]he whole time I'm standing there talking to [Antoine], [the shooter] is running his mouth and he's on his phone and he takes off his shirt. . . but he done call his friends down here by then.
So the boys come around there. I don't even know these boys who [the shooter] was with. They come running up and by then [Sheila] is pulling me out in the street talking about some no, no, no, but [the shooter] ran up on [Sheila] and swung over [Sheila] and that's how the whole little fight started. [The shooter] swung on [Sheila] and hit me and me and him started fighting and then somebody hit me from behind and somebody hit me from the side and ... [t]hey was jumping on me and ... I didn't know what was going on around me besides me getting jumped.[36]

         Ray stated that the shooter pulled a gun on Sheila, prompting Antoine to push Sheila out of the way while simultaneously using his other hand to strike the shooter.[37] Ray described the events surrounding the shooting as follows:

Q: So Antoine did hit the guy with the .. . gun?
A: Yeah. By this time [the shooter] had the gun and he had it on [Sheila]. So [Antoine] hit him and [Antoine] stumbled back and then [the shooter] shot one and I saw it ricochet off the ground and then he shot three more times.
Q: He shot at the ground?
A: Yeah. Like the first shot it ricocheted off the ground. I saw it and then I saw him shoot like three, three more times and then I just saw [Antoine] collapse over.
Q: Ok. How many shots did you see him fire?
A: I saw four.
Q: Four?
A: Yeah I saw four (inaudible).
Q: You, you said earlier that um, or you just said that the first shot you saw ricochet?
A: Yeah I saw that ricocheted cause [sic] as I was across the street.
Q: How was he holding the gun? I mean was he pointing it right down?
A: Yeah he had it just like this.
Q: Did he say anything?
A: Basically, ... I ain't really hear him say nothing. I mean [Sheila] said he said something to her, but I didn't really hear him say nothing. After [Antoine] hit him he just fired. So the gun um, the bullet ricocheted up and then he just shot some more and then that's when [Antoine] collapsed over....
Q: Now where was he pointing the gun at after the first shot? When he fired the additional ones, where was he pointing at?
A: After the first shot that's when it was like right here where my like back towards [Antoine's] back . . . like directly in.
Q: How far away was Antoine from the shooter?
A: Three feet, maybe four. It was close range.
Q: During this time when Antoine got shot did you see anybody else with any handguns, any weapons?
A: (Shaking head no).
Q: But you're saying you saw four shots?
A: Yeah. I saw the shots.
Q: How do you know they were coming from the shooter?
A: Cause [sic] I saw him as he was. I saw him. I actually saw him shooting. (Inaudible) As I backed up I was actually looking at my cousin [Antoine] the whole time I was backing up and I thought my cousin was running, but he never ran I guess.
Q: Did you see anything coming out of the gun?
A: Basically, yeah I just saw like little, you know how like it ain't no color like as you fire the gun. Like I saw like.
Q: Like flashing?
A: Yeah like flashes (inaudible) I saw flashes and they, they said the first bullet ricocheted up and hit him. I guess (inaudible) so like I just saw him collapse over and that's when everybody ran into the street.[38]

         Later in the interview, Ray further described the manner in which the shots were fired, stating:

Q: Well earlier you said [the shooter] shot one time ... to the ground right?
A: Yeah. The first bullet ricocheted up.
Q: You said earlier he fired how many rounds?
A: Four.
Q: Four, ok. (Inaudible) four rounds and the handgun was pointing down?
A: Yeah.
Q: But you know the bullet impacted the street right?
A: Yeah I saw that. I saw the impact.
Q: When [Antoine] collapsed in the street, how far away was the point where [the shooter] shot at the street?
A: Basically right there. Like.
Q: If you had to guess, how many feet?
A: Not even feet (inaudible) he shot and it hit the ground. [Antoine] never moved from there.
Q: So what happens after he fires in the street? What is Antoine doing? What is the shooter doing?
A: I saw him still (inaudible) and then I saw the shooter shooting more. He was shooting. He shot again.
Q: So you indicated earlier it's about three to four feet away?
A: Yeah.
Q: Now we know just by from your statements you said he fired a total of four rounds (inaudible) the street and by your statement, obviously there's three rounds. How many rounds did you see him fire at Antoine?
A: I saw every shot he took.
Q: So he shot three times at Antoine?
A: Yeah.
Q: Once at the street, but three times at Antoine?
A: (Shaking head yes).[39]

         During this interview, Police presented Ray with a six-person photographic lineup. Ray, who told police that he had never seen Romeo before the evening in question, identified Romeo from the photographic lineup as the one "who had the gun" and "shot [Antoine]."[40]

         Ray's Trial Testimony

         At trial, Ray testified about the fight and the subsequent shooting. Ray testified that Antoine used his left hand to push Sheila out of the way while using his right hand to strike Romeo.[41] Following the strike, Antoine staggered and took a step back as though he was leaving, all while maintaining his gaze on Romeo.[42] Ray then testified as follows:

Q: What happens next?
A: A gunshot goes off into the ground.
Q: When you say "a gunshot goes off into the ground," tell us what you saw.
A: I seen [sic] sparks fly and a bullet ricochet off the ground.
Q: Where were the sparks coming from?
A: From the gun that the defendant was holding, the gun.
Q: Do you remember what hand he's holding it in?
A: No.
Q: Okay. The gunshot that you see, you say the first is in the ...

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