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State v. Bussey

Superior Court of Delaware

June 26, 2019

STATE OF DELAWARE,
v.
TYRONE BUSSEY,

          Submitted: June 7, 2019

          Natalie S. Woloshin, Esquire, Woloshin, Lynch & Associates, P.A., Attorney for Defendant.

          Casey L. Ewart, Esquire, Department of Justice, Attorney for the State.

          MEMORANDUM OPINION

          KARSNITZ, J.

         If one were to use a baseball analogy, a Rule 61 petition is the bottom of the ninth, the home team down by three runs, no one on base, two outs and two strikes on the hitter. The Defendant already has been charged, tried, convicted and on direct appeal his convictions affirmed.

         Superior Court Criminal Rule 61 ("Rule 61") petitions face significant procedural, including timing, hurdles.[1] Here, however, the Defendant and the State are in accord that no procedural issues bar review of the substance of Defendant's claims.

         The Delaware Supreme Court in Albury v. State[2] adopted the standard for analyzing Rule 61 claims of ineffective assistance of counsel required in Strickland v. Washington.[3] Strickland mandated a showing that "...counsel's representation fell below an objective standard of reasonableness...", and "... that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."[4]

When an appellate court examines the representation of counsel pursuant to the first prong of the Strickland test, that review is subject to a strong presumption that counsel's conduct was professionally reasonable. That presumption is designed to eliminate the distorting effects of hindsight.[5]

         In my opinion defense counsel's work met the Strickland standard. In addition I also am of the opinion that the claimed deficient conduct, if altered as described by defendant, would not have produced a different result. The evidence presented at trial, including the recorded conversations between Defendant and his inamorata while Defendant was incarcerated, was of sufficient strength that even if one assumed trial counsel erred, the result would have been the same. I deny Defendant's Motion for Post-Conviction Relief.

         FACTS

         Defendant's motion raises one issue making a full recitation of facts unnecessary. I will try to keep it short. Defendant was arrested in March of 2015 following an altercation with Kim Shelton. Allegations included that Defendant threatened Shelton and her teenage son, W.P., with a gun, pistol-whipped Shelton, and dragged Shelton from her front to her back yard. W.P. ran to a neighbor asking that she call emergency services for help. The Defendant fled the area, but was eventually captured by police authorities. Police found a loaded gun in Shelton's back yard. Defendant was charged with 13 offenses including two counts of aggravated menacing, two counts of possession of a firearm during the commission of a felony, possession of both a firearm and ammunition by a person prohibited, assault 3rd, two counts of terroristic threatening, and four counts of endangering the welfare of a child.

         Ms. Shelton recanted her statements to police, including claiming she "planted" the gun by her back porch because she knew Defendant was prohibited from possessing weapons and ammunition, and she was trying to "...get him in trouble".

         Prosecution authorities discovered Defendant telephoned Shelton while he was in prison, in violation of his "no contact" order.[6] The conversations were recorded by the prison's telephone recording system, and are quite graphic. As part of the Rule 61 process I held oral argument as to Defendant's claim and, at the invitation of counsel, listened to the taped phone calls. They show a scheme between Defendant and Shelton to "revise" her earlier statements to police.

         Shelton told a version of events at Defendant's trial substantially different from what she told police the day they occurred. To counter the change the prosecution sought and was granted permission to have the two main investigating police officers testify as to what Shelton told them pursuant to the requirements of 11 Del. C. ยง3507. The officers who testified were Corporal Haddock and Corporal Kansak of the Laurel Police Department. ...


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