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State v. Phillips

Superior Court of Delaware

March 11, 2019

STATE OF DELAWARE, Plaintiff,
v.
JEFFREY PHILLIPS, Defendant.

          Submitted: February 13, 2019

         COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED

          Andrew Vella, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.

          Julianne E. Murray, Esquire, Law Offices of Murray, Phillips & Gay, Wilmington, Delaware, counsel to Jeffrey Phillips.

          KATHARINE L. MAYER, COMMISSIONER.

         This 11th day of March, 2019, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND, FACTS AND PROCEDURAL HISTORY[1]

         On January 27, 2008, Christopher Palmer was shot and killed inside an after-hours nightclub. Herman Curry ("Curry") witnessed the murder. On July 8, 2012, Curry and Alexander Karmara were shot and killed during a soccer tournament at Eden Park in Wilmington, DE. Law enforcement believed that the nightclub shooting and the Eden Park incident were related. There were multiple eyewitnesses at the Eden Park event that identified both Otis Phillips and Jeffrey Phillips ("Defendant") as the shooters. In addition, one of the State's primary witnesses, Kelmar Allen ("Allen"), testified that Defendant was a member of the Sure Shots gang, had access to a handgun, and was a willing participant in the shootout at the park.

         Defendant was indicted, along with Otis Phillips and fourteen other co-defendants, on numerous charges including two counts of Murder in the First Degree, Attempted Murder in the First Degree and gang participation relating to criminal activities of the Sure Shots street gang. A joint capital trial was conducted in October of 2014 resulting in Defendant's conviction of Murder in the First Degree, Manslaughter (as a lesser included offense), Gang Participation, Conspiracy in the First Degree, Possession of a Firearm During the Commission of a Felony (four counts), Assault in the Second Degree, Reckless Endangering in the First Degree, and Disorderly Conduct. Defendant was acquitted of Assault Third Degree and Conspiracy in the Second Degree. Defendant was eventually sentenced to life imprisonment and an additional 72 years at Level 5 incarceration, followed by decreasing levels of supervision.

         Defendant appealed and the Supreme Court affirmed the judgment of conviction on February 7, 2017. Defendant next filed a pro se Motion for Postconviction Relief on April 10, 2017, and counsel was appointed. Appointed counsel filed an Amended Motion for Postconviction Relief (the "Motion") with an Opening Brief and Appendix in support. The record was enlarged, an Affidavit of Kevin J. O'Connell ("Trial Counsel") in Response to Allegations of Ineffective Assistance of Counsel was submitted, the State filed a Response to the Motion, and Defendant filed a Reply.[2] In the Reply, Defendant presented a new claim for the Court's consideration. The Court ordered Trial Counsel to submit an addendum to his affidavit, [3] and the State filed a supplemental response[4] addressing that one new issue. The record is now complete. After reviewing the briefs and record, I do not believe an evidentiary hearing is required to resolve this matter and the Motion should be denied.

         LEGAL CONCLUSION

         Before considering the merits of the claims, the Court must first determine whether there are any procedural bars to the Motion.[5] Defendant's Motion was filed within one year of the Supreme Court's mandate after appeal and is not barred as untimely.[6] However, other procedural bars may apply. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction is barred, unless the movant can show cause for relief from the procedural default and prejudice from a violation of the movant's rights.[7] In addition, any claims that were formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, are thereafter barred.[8] Ineffective assistance of counsel claims cannot be raised at any earlier stage in the proceedings and are properly presented by way of a motion for postconviction relief.[9]

         In order to prevail on an ineffective assistance of counsel claim, a defendant must show that his counsel's representation fell below an objective standard of reasonableness and the deficiencies in counsel's representation caused the defendant actual prejudice.[10] The court must be persuaded that the alleged errors were so serious that his counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.[11] Further, in order to prevail on an ineffective assistance of counsel claim, a defendant must show that but for the errors, there is a reasonable probability that the outcome of the proceedings would have been different.[12] The test is not whether the Defendant can demonstrate that the error had some "conceivable effect" on the outcome but rather whether the error undermined the reliability of the result of the proceeding.[13] Defendant must overcome a strong presumption that counsel's conduct was reasonably professional under the circumstances.[14]

         Although Defendant couches his claims as ineffective assistance of counsel, as set forth below, his claims have already been substantively addressed by the Trial Court and the Supreme Court on appeal and should be barred as formerly adjudicated.[15] However, for purposes of completeness, I will address the allegations that Defendant's counsel provided ineffective assistance.

         I. Defendant's First Claim for Relief

         Defendant first argues that his constitutional rights were violated by Trial Counsel's failure to substantively communicate with him prior to trial. Although styled as an ineffective assistance of counsel claim, the argument is more accurately an attack on the timing by which the State provided Trial Counsel with information that was otherwise the subject of a protective order. Recognizing Trial Counsel "pushed hard for relief from the protective order" Defendant goes on to argue that the receipt of 1100 pages of transcribed witness statements, 10 days before trial, made it impossible for Trial Counsel to effectively work through this information with his client.

         When Defendant argued on appeal that the Trial Court denied him the right to effectively prepare for trial by granting the State's protective orders, the Supreme Court disagreed. Rather, it recognized that "[p]rior to any witness testifying, Jeffrey and his counsel possessed, and had the opportunity to discuss, every witness statement."[16] The Supreme Court also held that the witness statements were disclosed "well in advance of trial, [and] their identities were revealed in advance of trial..."[17] It then concluded that the Trial Judge struck a proper balance between witness safety and Defendant's ability to prepare his defense.[18] Despite both the Trial Court and the Supreme Court having ruled on the matter, Defendant now argues he is not "attempting to take a bite at the same apple by bringing up the protective order again, ... Jeffrey argues that it is not the same apple." I disagree.

         Regardless of the attempt to re-couch the argument, Defendant is attacking the existence of the protective order, the Trial Court's denial of his request for relief from the protective order, and the Supreme Court's affirmation of that ruling. The fact that Defendant is now attempting to re-litigate the issue under the "guise of ineffective assistance of counsel" does not justify avoidance of the bar against reconsideration of matters that have been formerly adjudicated.[19]

         Even if the Court were to now consider this as a claim of ineffective assistance of counsel, the argument fails.[20] Replete throughout the Motion is references to what Trial Counsel did do (rather than failed to do) to gain relief from the constraints imposed.[21] Effective representation by trial counsel requires "adequate investigation and pre-trial preparation."[22] Here, Trial Counsel first articulated his concerns to the Court during a pre-trial office conference. When relief was denied, Trial Counsel was faced with a daunting task, but his actions were objectively reasonable. Defendant fails to identify anything Trial Counsel could, or should, have done differently, other than a vague reference that he could have requested more time.[23]Trial Counsel admits he could have sought more time, but also recognizes the justification for the protective order to ensure safety of the witnesses and fairness in the process. Trial Counsel also attests that the request for more time would have likely been denied. Great weight and deference are given to tactical decisions by the trial attorney and counsel cannot be deemed ineffective for failing to pursue motions that lack merit.[24] Defendant has not met his burden of demonstrating error by Trial Counsel.

         In addition, neither Trial Counsel, nor Defendant explain how the outcome of the trial would have been different if Trial Counsel had succeeded in obtaining additional time. In order to prevail on a claim of ineffective assistance of counsel, Defendant must establish actual prejudice by showing that had counsel not erred, there was a reasonable probability that the outcome or the result of the proceeding would have been different.[25] A defendant must make and substantiate concrete allegations of actual prejudice.[26] Claims that are conclusory and unsubstantiated will not be addressed by the court.[27]

         Defendant's claim of ineffective assistance of counsel fails because he cannot demonstrate that lack of preparation by Trial Counsel "caused the jury to reach a verdict it would not otherwise have reached."[28] Therefore, Defendant's first claim for relief is barred as formerly adjudicated, and to the extent it is phrased as a claim of ineffective assistance of counsel, Defendant has failed to establish either prong of the Strickland standard to justify relief.

         II. Defendant's Second Claim for Relief

         Next, Defendant argues Trial Counsel was ineffective in failing to file a motion to sever based on (i) the likelihood that co-defendants would have antagonistic defenses; and (ii) prejudice due to the unrelated co-defendants sharing a last name.

         A. The antagonistic defenses

         Again, Defendant recognizes he had not one, but two, "bites at the apple" because (1) Trial Counsel submitted a Motion to Sever Based on Prejudicial Joinder; and (2) Trial Counsel moved for severance again after a witness testified because the co-defendants now intended to engage in different cross-examination strategies. Defendant argues that Trial Counsel was ineffective for acting "too late."

         Trial Counsel admits that he did not anticipate the antagonistic defenses that came to light as the trial wore on. Here, the different defenses revolve around Defendant's desire to explore a witness's (Allen) protection agreement, and his co-defendant's inclination not to. Trial Counsel learned of the existence of the agreement on the second day of trial and was later given a copy of the agreement and an opportunity to cross-examine the witness both outside the presence of the jury and on the record.[29] After Allen began his testimony, Trial Counsel twice moved for a mistrial.[30] Although the requests were denied, a curative and limiting instruction were given to the jury. Immediately upon realizing the defendants held differing trial strategies with respect to cross-examination, both defendants moved for severance.[31] In denying the severance request, the Trial Court held that:

neither of the Defendants' positions present separate defenses as to a State's witness's participation in witness protection, or otherwise, that the jury could only reasonably accept the core of it if it rejects the core of the defense offered by his co-defendant. Moreover, neither of the Defendants testified or presented evidence that directly implicated the other in their own defense.[32]

         The Supreme Court agreed. When the issue of severance was presented on appeal, the Supreme Court held that Defendant failed to demonstrate sufficient unfair prejudice to mandate separate trials and the Trial Court did not abuse its discretion when it denied the request to sever the cases.[33]

         Like the former argument, this claim is barred by Super. Ct. Crim. R. 61(i)(4) as formerly adjudicated. Assuming Defendant were able to evade this bar, he must demonstrate that Trial Counsel's actions were not objectively reasonable and that he was prejudiced as a result. I find that Trial Counsel acted as swiftly as possible after learning of the agreements, moved several times for a mistrial and severance, cross-examined the witness, and obtained curative and limiting instructions. It is difficult to identify what more, ...


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