State v. Thompson ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
)
v. ) I.D. No. 1602016732
)
AARON THOMPSON, )
)
Defendant. )
Submitted: February 8, 2022
Decided: May 31, 2022
Upon Consideration of Defendant’s Motion for Post-Conviction Relief,
DENIED.
MEMORANDUM OPINION
Maria T. Knoll, Esquire, Chief of Appeals, DEPARTMENT OF JUSTICE,
Wilmington, Delaware. Attorney for the State of Delaware.
John P. Deckers, Esquire, LAW OFFICE OF JOHN P. DECKERS, P.A.,
Wilmington, Delaware. Attorney for Defendant Aaron Thompson.
BUTLER, R.J.
Defendant Aaron Thompson was convicted for his role as the hitman in a
murder-for-hire scheme under which Joe and Olga Connell were shot to death
outside the Paladin Club Condominiums. Thompson now moves under Rule 61 for
post-conviction relief. He does not maintain his innocence. Instead, he principally
claims that his lawyer at trial and on appeal (“Trial Counsel”) had an actual conflict
of interest that denied him his right to effective assistance of counsel. As explained
below, Thompson’s motion must be denied because it fails to show an actual conflict
or ineffective assistance.
BACKGROUND
The murders of Joe and Olga Connell and subsequent trials of the participants
have been documented extensively. 1 The Court therefore will limit its factual
recitations to those relevant to Thompson’s claims.
A. The Murder-for-Hire Scheme
Christopher Rivers and Joe Connell ran an auto repair shop together. As part
of a mortgage financing, each partner was required to purchase a one-million-dollar
1
See generally State v. Rivers, 2022 WL 964399 (Del. Super. Ct. Mar. 31, 2022);
Thompson v. State, 205 A.3d 827 (Del. 2019); Rivers v. State, 183 A.3d 1240 (Del.
2018); State v. Benson, 2016 WL 6196073 (Del. Super. Ct. Oct. 14, 2016); State v.
Benson, 2016 WL 3660525 (Del. Super. Ct. Apr. 27, 2016); State v. Rivers, 2015
WL 13697670 (Del. Super. Ct. Dec. 22, 2015); State v. Benson, 2015 WL 3539995(Del. Super. Ct. June 2, 2015); State v. Benson, 3539358 (Del. Super. Ct. June 1,
2015). Most of these decisions involve Thompson’s co-conspirators, but their basic
factual background applies equally here.
2
life insurance policy on the other. Rivers was the beneficiary of Joe Connell’s
policy. Whether it was simple greed or more obscure motives, Rivers decided to
have his partner and his new wife killed.
Joshua Bey was a customer at the auto shop. Rivers solicited Bey to kill the
Connells. Bey agreed, assuring Rivers he knew people who could do that. Bey then
hired Dominique Benson 2 who in turn hired Thompson to assist Benson in the hit.
The three agreed to divide a $50,000 bounty payable by Rivers from Joe Connell’s
life insurance policy. 3
On September 22, 2013, as the Connells returned home from dinner,
Thompson and his partner were waiting for them outside. The Connells died in a
hail of bullets, their bodies coming to rest outside the condominium entrance. Shell
casings were located near Olga Connell’s body and more shell casings of a different
caliber were located near Joe Connell’s body, lying several feet away.
Rivers, Bey, and Benson were all arrested well before Thompson was. Then
Bey “flipped” against his co-conspirators. Rivers and Benson were tried first.
Thompson’s arrest came just weeks before the start of their trial. Thompson’s trial
followed.
2
The State sought to prove that both Thompson and Benson killed the Connells.
The jury hung on Benson’s murder charges and convicted him of conspiracy.
Although a hung verdict does not mean Benson is innocent, this decision simplifies
the trial outcomes by treating Thompson as the only shooter.
3
Adding insult to injury, Bey received only $5,000, which he gave to Thompson.
3
B. The Trial
It is not an exaggeration to say that Bey’s testimony played a pivotal role in
all the “Paladin Club” murder trials. 4 Indeed, there may not have been any trials
without Bey’s cooperation. But Bey was a turncoat who accepted a plea offer in
exchange for incriminating his co-conspirators. The State thus focused most of its
efforts on shoring up Bey’s credibility in any way it could. Three such efforts are
relevant to Thompson’s motion.
1. The Ballistics Evidence
No firearms were recovered at the murder scene or introduced at trial. Bey
did not testify to the make, model, or caliber of the firearms used because he was not
at the scene of the murders and did not directly participate in arming the gunmen.
There were, however, shell casings recovered at the scene.
The State called Carl Rone (“Rone”), who was then employed by the
Delaware State Police (“DSP”), as a ballistics expert. Rone did not examine a
murder weapon. 5 He had, however, prepared two reports on the shell casings. One
report was prepared in 2016. Both reports were peer reviewed by his colleagues. 6
4
For a synopsis of Bey’s testimony against Thompson, the Court directs interested
readers to the Supreme Court’s decision on Thompson’s direct appeal. See generally
Thompson v. State, 205 A.3d 827, 829–31 (Del. 2019). See also supra note 1
(collecting additional background).
5
See, e.g., Vol. A to Post-Conviction R. at 67 (hereinafter “A[#]”); Vol. B to Post-
Conviction R. at 198–201, 212–13 (hereinafter “B[#]”).
6
See, e.g., A26–57.
4
Rone testified that some of the bullets were fired from the same gun.7 But he
was unable to opine on whether the remaining bullets were fired from one gun or
multiple guns. 8 Most important, Rone did not identify Thompson—or anyone else—
as the shooter or offer evidence suggesting that any person in particular was present
when and where the Connells were killed.
Rone figures prominently in Thompson’s motion. But he played a very minor
role in the trial.
2. The “Vesta” Evidence
Critical evidence corroborating Bey’s testimony came in the form of Cell Site
Location Information (“CSLI”). Specifically, the movements of cell phones on the
night of the murder corroborated Bey’s testimony about his communications with
Benson and Thompson.
One such phone was a disposable cell phone (the “Kenny AAAA” phone),
which was identified near the crime scene when the murders occurred. That phone
was purchased from Metro PCS. Thompson owned a regular cell phone, which he
purchased from T-Mobile. But the State believed Thompson also owned the Kenny
AAAA phone. The State sought to support its belief with four pieces of evidence.
7
See, e.g., A62–65; B198–201, 212–13.
8
See, e.g., A67; B202–04, 213–17. Forensic evidence obtained by a DSP detective
from the Connells’ bodies suggested that two guns were used. B2–5, 8–11. But the
detective likewise could not testify as to whether two guns were in fact used.
5
First, the Kenny AAAA phone contacted Benson on the night of and just
before the murders occurred.9 Second, Thompson’s girlfriend contacted the Kenny
AAAA phone shortly after the murders occurred. 10 Third, the Kenny AAAA phone
ran on a pre-paid number of “minutes.” And fourth, Thompson’s banking records
indicated that, throughout 2013, he had been using an electronic intermediary,
“Vesta,” to make periodic transfers resembling “minutes” payments to T-Mobile. 11
The State’s evidence had holes. For one thing, unlike Thompson’s other
phone, the Kenny AAAA phone was carried by Metro PCS, not T-Mobile. 12 For
another, the banking records showed that Thompson did not make a Vesta payment
to Metro PCS until June 2014—i.e., nine months after the murders.13 Given these
discrepancies, Thompson argued that he did not own the Kenny AAAA phone and
that his 2013 Vesta payments to T-Mobile were made for his personal phone.
To rebut Thompson’s arguments, the State called a T-Mobile records
custodian. The witness explained why a 2013 Metro PCS customer would be billed
by T-Mobile for Metro PCS’s network. According to the witness, T-Mobile
acquired Metro PCS in 2013 using a merger structure that kept the companies
9
See, e.g., B102–13.
10
See, e.g., B94–101.
11
See, e.g., A84–87, 91, 96, 98, 118–22.
12
See, e.g., A118–21.
13
See, e.g., A87.
6
operationally distinct. 14 In other words, the merger testimony refashioned
Thompson’s “T-Mobile” payments as Metro PCS payments.
Trial Counsel objected. Trial Counsel argued that there was no evidence of a
merger or when it occurred. 15 Without that evidence, the defense feared the
custodian’s testimony would compel an inference that Thompson owned the Kenny
AAAA phone. That inference would be “wrong,” according to Trial Counsel,
because the State’s records showed Vesta payments to two different wireless
companies.16 After hearing argument, the Court overruled the objection, finding that
the objection went to weight, not admissibility, and so could be addressed on cross-
examination.17
The defense’s cross-examination clarified that Thompson’s 2013 Vesta
payments were made to T-Mobile, not Metro PCS. 18 Better, the defense elicited
from a DSP detective that the Kenny AAAA phone was deactivated in October
2013—i.e., a month after the murders but eight months before Thompson made the
Vesta payment to Metro PCS. 19 This gap enabled Trial Counsel to argue that, in
2013, Thompson was using Vesta to pay for his T-Mobile phone, while in 2014, he
14
See, e.g., B16–17.
15
See, e.g., B115–23.
16
See, e.g., B120–21.
17
See, e.g., B130–31.
18
See, e.g., B141.
19
See, e.g., B140–41.
7
was using Vesta to pay for a different or new, Metro PCS phone.20 Trial Counsel
emphasized that a 2014 Metro PCS phone payment could not be for the Kenny
AAAA phone because the Kenny AAAA phone had been deactivated 2013. 21
3. The “Commerce Street” Evidence
Thompson worked for a company called Leonard’s Express Trucking. At
trial, the parties assumed that Leonard’s owned two parking lots in 2013: one at 300
Pigeon Point Road in New Castle and the other at 20 Commerce Street in
Wilmington. The Commerce Street location was seven minutes away from the
Paladin Club.22
The State called an FBI agent as its CSLI expert. The agent testified that,
before and after the murders, CSLI located Thompson’s phone near the crime
scene. 23 Specifically, the agent testified that Thompson’s phone was in the vicinity
of Route 9 and the I-95 at the time.24 Based on the geographical area covered by the
cell towers, the Route 9 and I-95 vicinity was triangulated within the same region as
the 20 Commerce Street lot. 25
20
See, e.g., B178–80, 186–87.
21
See, e.g., id.
22
See, e.g., A346.
23
See, e.g., A313–24.
24
See, e.g., A318–19.
25
See, e.g., B112–13.
8
The CSLI was incriminating. But one of Thompson’s supervisors testified
that Thompson was working on the night of the murders.26 And this supported the
defense’s story. The defense portrayed Thompson as a hard-worker with steady
income who did not need and would not want to commit a murder for money.
Recognizing this, the State sought to argue that Thompson was “at Leonard’s
Trucking,” except with a different purpose than the defense depicted.
To that end, the State asked Thompson’s supervisor for Leonard’s Trucking’s
address.27 The State did not specify a timeframe. The supervisor answered, in the
present tense, that one of Leonard’s addresses is located on 20 Commerce Street.28
The supervisor’s testimony, coupled with the CSLI, allowed the State to theorize
that Thompson used Leonard’s as a front: he wanted an onlooker to misbelieve that
he was “at work,” rather than parked and waiting for a signal to kill the Connells.29
C. The Post-Trial
The jury convicted Thompson on all charges. The Court sentenced him to
two terms of life imprisonment plus 45 years at Level V. He appealed.
1. The Appeal (Pre-Rone Indictment)
26
See, e.g., B18–39.
27
See, e.g., A325–26.
28
See, e.g., id.
29
See, e.g., A348.
9
Trial Counsel represented Thompson on his direct appeal. In his opening
brief, Trial Counsel argued three claims. 30 Each claim involved Bey’s testimony
and credibility and their effects on the jury. None of the claims involved Rone.
2. The Rone Indictment
In 2018, Rone was indicted. 31 The State alleged that, over the course of 2016
and 2017, Rone falsified some of his time sheets to obtain unearned compensation.
Rone’s wrongdoing overlapped his 2016 expert report and Thompson’s 2017 trial.
But the State’s indictment never alleged that Rone fabricated any of his ballistics
reports or accused Rone of committing perjury while on the witness stand.
After filing the opening brief in Thompson’s direct appeal, Rone retained
Trial Counsel to represent him in the Superior Court. Rone ultimately pleaded guilty
to misdemeanor theft charges. He was sentenced to a period of probation and
ordered to make restitution to the State for the stolen compensation.
3. The Appeal (Post-Rone Indictment)
As of Rone’s convictions, Thompson’s appeal still was not fully submitted.
Trial Counsel did not supplement Thompson’s appellate pleadings with arguments
concerning Rone’s trial testimony or his credibility during Thompson’s trial. He
also did not request a new trial or a remand for Thompson in light of Rone’s
30
Appellant’s Opening Br. at 18–35, Thompson v. State, 205 A.3d 827 (Del. 2019)
(No. 454,2017), D.I. 15.
31
See generally State v. Rone, 2018 WL 4482462 (Del. Super. Ct. Sept. 17, 2018).
10
conviction. Instead, Trial Counsel filed a reply brief that reiterated the arguments
he made on behalf of Thompson in his opening brief.32
On February 21, 2019, the Supreme Court affirmed Thompson’s
convictions.33 The Supreme Court’s mandate was issued on March 13, 2019.34
D. This Motion
This motion followed. On April 8, 2019, Thompson moved pro se under Rule
61 for post-conviction relief. On April 18, 2019, the Court appointed counsel (“PCR
Counsel”) to represent Thompson. On January 29, 2021, Thompson filed a second
amended Rule 61 motion. On August 18, 2021, Trial Counsel filed a responsive
affidavit. On January 7, 2022, the State opposed Thompson’s motion. On February
8, 2022, Thompson replied. The motion is now ripe for decision.
1. The Post-Conviction Discovery Efforts
PCR Counsel diligently investigated Thompson’s claims. For example, PCR
Counsel obtained the discovery the State produced to Trial Counsel in the Rone
case.35 PCR Counsel then subpoenaed a number of executive agencies to determine
whether Rone falsified his time sheets on the dates he prepared the ballistics reports
32
Appellant’s Reply Br. at 1–10, Thompson v. State, 205 A.3d 827 (Del. 2019) (No.
454,2017), D.I. 19.
33
Op., Thompson v. State, 205 A.3d 827 (Del. 2019) (No. 454,2017), D.I. 29
34
Mandate, in id., D.I. 31.
35
See, e.g., A204–05, 207, 210, 213, 216, 244, 246, 254–55.
11
that were introduced at Thompson’s trial. 36 PCR Counsel also tried to subpoena
Rone to compel production of any records the government did not possess.37
Separately, PCR Counsel investigated the background of the T-Mobile-Metro PCS
merger and Leonard’s 2013 ownership of the 20 Commerce Street parking lot.38
Where relevant, the Court will address Thompson’s post-conviction evidence below.
2. The Claims for Relief
Thompson does not maintain his innocence. Instead, Thompson brings four
ineffective assistance claims. Two are based on Trial Counsel’s appellate
performance and two are based on Trial Counsel’s trial performance. Trial Counsel
has filed an affidavit in which he denies all the allegations. 39
a. The Conflict Claims
Thompson alleges that Trial Counsel’s simultaneous representation of Rone
in the Superior Court while Thompson’s case was on appeal denied Thompson his
right to counsel (the “Conflict Claims”).40 Specifically, Thompson alleges the
multiple representation created an actual and per se prejudicial conflict of interest
36
See, e.g., Vol. C. to Post-Conviction R. at 1–66.
37
Subpoena Duces Tecum, State v. Thompson (Cr. No. 1602016732), D.I. 128.
38
See, e.g., Def.’s 2d Am. R. 61 Mot. at 63–66 (discussing collected cases); A359.
39
See generally Maurer Aff.
40
The Conflict Claims are pluralized because Thompson makes the same allegation
twice: first under federal law and again under Delaware law. As discussed below,
the Delaware law version is not recognized by existing precedent. See infra
Analysis.B § 1(b)(iv). Even so, the Court retains the plural form for convenience.
12
that prevented Trial Counsel from challenging Rone’s testimony and character on
appeal. Thompson seeks an evidentiary hearing on the Conflict Claims.41
Trial Counsel denies the Conflict Claims. He states that he “did not even
consider that there was any potential problem . . . [or] conflict of interest” or “that
there could be one.” 42 Trial Counsel affirms that he did not attack Rone’s character
on appeal because Rone’s testimony was not helpful to the State’s case or harmful
to Thompson’s defense:
[C]ounsel did not challenge the ballistics evidence . . . and, in particular, the
testimony presented by [] Rone[] [because] Counsel did not believe that the
[ballistics] evidence was significant insofar as the defense theory was
concerned . . . . [O]n direct appeal . . . nothing relating to the ballistics
evidence was argued or considered as an issue . . . . 43
b. The Vesta Claim
Thompson alleges that Trial Counsel was ineffective because he did not
meaningfully challenge the evidence of Thompson’s Vesta payments (the “Vesta
Claim”). According to Thompson, there was public information available during his
trial tending to show that Vesta could not be used to pay for a Metro PCS phone in
2013. The “public information” to which Thompson refers is caselaw from a federal
court in Oregon. Thompson seeks a new trial as relief for the Vesta Claim.44
41
Def.’s 2d Am. R. 61 Mot. at 83.
42
Maurer Aff. ¶ 8.
43
Id. ¶¶ 7–8.
44
Def.’s 2d Am. R. 61 Mot. at 83.
13
Trial Counsel denies the Vesta Claim. He states that he objected to the Vesta
payment records.45 He also states that the defense undermined the Vesta payments
anyway because it showed that “Thompson made payments [through] Vesta after
[the Kenny AAAA Phone] stopped being used.”46
c. The Commerce Street Claim
Finally, Thompson alleges Trial Counsel was ineffective because he failed to
point out that Leonard’s Trucking did not own the 20 Commerce Street lot at the
time of the murder (the “Commerce Street Claim”). Thompson supports this
allegation with an unreported interview between a defense investigator and a
Leonard’s Trucking representative who says Leonard’s did not become the owner of
20 Commerce Street until 2014, a year after the murder. The error was prejudicial,
in Thompson’s view, because the State stressed that he was “at Leonard’s” on the
night of the murder. Thompson seeks a new trial as relief for this Claim.47
Trial Counsel denies the Commerce Street Claim. He states that ownership
of the parking lot was not important because “there were not many cell towers in the
area” and Thompson was identified in the general vicinity of 20 Commerce Street.48
Counsel also reiterates that the defense sought to portray Thompson as an assiduous
45
Maurer Aff. ¶ 9.
46
Id.
47
Def.’s 2d Am. R. 61 Mot. at 83.
48
Maurer Aff. ¶ 10.
14
person who was “at work” on the night of the murders.49 Accordingly, Trial Counsel
suggests that allowing the jury to believe Thompson was “at Leonard’s” was
“strategic” because it supported the defense’s narrative.50
STANDARD OF REVIEW
A defendant may move under Criminal Rule 61 for post-conviction relief.51
Rule 61 “balances” the law’s interest in conviction finality “against . . . the important
role of the courts in preventing injustice.” 52 Although the availability of collateral
review reintroduces uncertainty into completed criminal proceedings, the
(“extremely rare”) possibility of undetected innocence or a comparable miscarriage
of justice “overrides” its disruptive effects. 53
In the generic case, however, there must be a “definitive end to the litigable
aspect of the criminal process.”54 Collateral review “ensure[s] that individuals are
not imprisoned” wrongly; it is not designed to correct minor “errors of fact.”55
49
Id. ¶ 11.
50
Id.
51
Del. Super. Ct. Crim. R. 61.
52
Zebroski v. State, 12 A.3d 1115, 1120 (Del. 2010).
53
Schlup v. Delo, 513 U.S. 298, 321 (1995).
54
Flamer v. State, 585 A.2d 736, 745 (Del. 1990). See McCleskey v. Zant, 499 U.S.
467, 491 (1991) (“Without finality, the criminal law is deprived of much of its
deterrent effect.” (internal quotation marks omitted)); Kuhlmann v. Wilson, 477 U.S.
436, 453 (1986) (plurality opinion) (noting rehabilitative aspects of finality).
55
Herrera v. Collins, 506 U.S. 390, 400 (1993).
15
“Calibrated to screen for the wrongfully convicted, Rule 61 should not be used to
launch post hoc strikes on issues inessential to a judgment of guilt.” 56
Rule 61 does not “allow defendants unlimited opportunities to relitigate their
convictions.”57 To deter abusive collateral litigation, the standards and
presumptions “adopted” under post-conviction rules purposefully have made
“winning [collateral] relief difficult[.]” 58 Because convictions are “presumed valid,”
a defendant seeking to overturn a conviction “bears a heavy burden.” 59 In
discharging that burden, the defendant must contend with a “presumption of
regularity.” 60 “The presumption of regularity attaches to all final judgments . . . and
implies those judgments have been done rightly until contrary evidence appears.”61
Accordingly, Rule 61 shifts to the defendant the burden of demonstrating that his
56
State v. Owens, 2021 WL 6058520, at *10 (Del. Super. Ct. Dec. 21, 2021).
57
Ploof v. State, 75 A.3d 811, 820 (Del. 2013).
58
Brown v. Davenport, 142 S. Ct. 1510, 1526 (2022). See generally Brown v. Allen,
344 U.S. 443, 537 (1953) (Jackson, J., concurring in the judgment) (“It must
prejudice the occasional meritorious [collateral] application to be buried in a flood
of worthless ones. He who must search a haystack for a needle is likely to end up
with the attitude that the needle is not worth the search.”).
59
Higgason v. Clark, 984 F.2d 203, 208 (7th Cir. 1993). Accord Meyers v. Gillis,
93 F.3d 1147, 1151 (3d Cir. 1996); see also Restatement (First) of Judgments §§ 4,
11 (1952).
60
E.g., Parke v. Raley, 506 U.S. 20, 29 (1992); accord Xenidis v. State, 2020 WL
1274624, at *2 (Del. Mar. 17, 2020).
61
Xenidis, 2020 WL 1274624, at *2.
16
conviction is not supported by a “sufficient factual and legal basis” that otherwise
will be presumed.62
ANALYSIS
A Rule 61 analysis proceeds in two steps. First, the Court must determine
whether the motion is procedurally barred. 63 If it is not barred, the Court next
reviews the motion’s merits on a claim-by-claim basis.64 As explained below,
Thompson’s motion is not barred,65 but it fails to state a claim for collateral relief.
A. Thompson’s motion is not procedurally barred.
Rule 61 is nothing “other than a procedural device[.]”66 As a result, there are
“several” procedural “limitations on the availability of postconviction relief.”67 Rule
61 contains four procedural bars that, if applicable, preclude review of all or part of
the defendant’s motion.68 Rule 61 bars claims that are untimely,69 successive,70
defaulted,71 or formerly adjudicated. 72
62
Del. Super. Ct. Crim. R. 61(a)(1). See, e.g., Dorsey v. State, 2007 WL 4965637,
at *1–2 (Del. Nov. 6, 2007).
63
E.g., Younger v. State, 580 A.2d 552, 554 (Del. 1990).
64
E.g., State v. Reyes, 155 A.3d 331, 342 n.15 (Del. 2017).
65
A reviewing court could conclude that the Vesta Claim is procedurally barred. See
infra Analysis.A.
66
Bailey v. State, 588 A.2d 1121, 1125 (Del. 1991).
67
Ploof, 75 A.3d at 820.
68
See generally Del. Super. Ct. Crim. R. 61(i)(1)–(4).
69
Id. R. 61(i)(1).
70
Id. R. 61(i)(2).
71
Id. R. 61(i)(3).
72
Id. R. 61(i)(4).
17
The Conflict and Commerce Street Claims are not procedurally barred. These
Claims are timely, are not successive, and were not previously adjudicated. They
also are not defaulted because they allege ineffective assistance of counsel, which
“generally cannot be raised at trial or on direct appeal.” 73
The Vesta Claim is a closer call. The Vesta Claim is timely and not
successive. Crediting its “ineffective assistance” title, the Vesta Claim is not
defaulted either. Even so, the Vesta Claim appears to have been adjudicated already.
Under Rule 61(i)(4), “[a]ny ground for relief that was formerly adjudicated .
. . in the proceedings leading to the judgment of conviction . . . is thereafter barred.”
At trial, Thompson argued that the State’s Vesta records could not show that
Thompson paid Metro PCS in 2013. The Court rejected this argument. A trial
plainly is a “proceeding[] leading to the judgment of conviction[.]”74 And the
Court’s decision plainly is a former “adjudication.” 75 If the Vesta Claim is formerly
adjudicated, then it cannot be reviewed unless Thompson pleaded with particularity
73
Malloy v. State, 2011 WL 1135107, at *2 (Del. Mar. 28, 2011). See, e.g., Green
v. State, 238 A.3d 160, 175 (Del. 2020) (“Simply put, ineffective-assistance claims
are not subject to Rule 61(i)(3)’s bar because they cannot be asserted in the
proceedings leading to the judgment of conviction under the Superior Court's rules
and this Court's precedent. Put yet another way, the failure to assert an ineffective-
assistance-of-counsel claim in the proceedings leading to the judgment of conviction
is not a procedural default.” (footnote omitted)).
74
Del. Super. Ct. Crim. R. 61(i)(4).
75
See Adjudication, Black’s Law Dictionary (11th ed. 2019) (defining adjudication
as “[t]he legal process of resolving a dispute”).
18
new evidence creating a strong inference of his actual factual innocence or a new
constitutional rule that operates retroactively on collateral review to invalidate his
convictions.76 He did not.
Thompson’s contrary framing does not make much of a difference.
Thompson classifies the Vesta Claim as an ineffective assistance claim. But titles
are not dispositive. Rule 61(i)(4) “precludes” a defendant “from relitigating” a
previously adjudicated issue “under the guise of ineffective assistance of counsel.”77
True, Thompson now articulates the Vesta Claim more precisely than Trial
Counsel did. But “a defendant is not entitled to have a court re-examine an issue
that has been previously resolved ‘simply because the claim is refined or restated.’”78
That remains law even though the Vesta Claim was not raised on appeal. Rule
61(i)(4) applies to trial rulings that are not challenged on appeal. 79 And Thompson
76
Del. Super. Ct. Crim. R. 61(d)(2), (i)(5).
77
Shelton v. State, 744 A.2d 465, 485 (Del. 2000). See, e.g., Owens, 2021 WL
6058520, at *12 n.108 (“Rule 61’s procedural bars would have no teeth if a post-
conviction defendant could avoid them by simply recasting . . . precluded challenges
in the language of ineffectiveness.”).
78
Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992) (quoting Riley v. State, 585
A.2d 719, 721 (Del. 1990)).
79
See Del. Super. Ct. Crim. R. 61(i)(4) (using a disjunctive “or” to separate
“proceedings leading to the judgment of conviction” and “in an appeal”). E.g., State
v. Johnson, 2021 WL 1407362, at *2 (Del. Super. Ct. Apr. 13, 2021) (barring as
formerly adjudicated claim that was rejected during pre-trial suppression hearing,
even though defendant did not take direct appeal). As explained shortly, the
Delaware Supreme Court has recognized that, when the “underlying merits” of a
claim are formerly adjudicated, “a follow-on ineffective [] assistance” version of that
claim may be “considered formerly adjudicated” too. Green, 238 A.3d at 176.
19
does not allege that Trial Counsel was ineffective for failing to raise the Vesta Claim
on appeal.
Despite all this, the Court will review the Vesta Claim on the merits. The
Delaware Supreme Court has advised against a free-wheeling approach to
procedurally barring ineffective assistance claims. In Green v. State,80 the Supreme
Court cautioned that an ineffective assistance claim should not be barred simply
because it “might bear some resemblance to a formerly adjudicated claim.”81
Applying that guidance, Green distinguished an ineffective assistance claim that has
been rendered substantively “futile” by past review from an ineffective assistance
claim that has been rendered procedurally barred by a prior adjudication.82 The
Accord State v. Dunnell, 2021 WL 1716647, at *8–9 (Del. Super. Ct. Apr. 30, 2021)
(using this logic to bar ineffective assistance version of evidentiary claim that
received “substantive[] review[] . . . on direct appeal”). So the Supreme Court
appears to have cabined Rule 61(i)(4) to former adjudications on the merits. See
Green, 238 A.3d at 176 (declining to apply Rule 61(i)(4) to ineffective assistance
claim that was previously adjudicated for “plain error” but not on its “substantive . .
. merit”). At trial, the Court rejected Trial Counsel’s arguments on the merits in
finding that the Vesta records were admissible.
80
238 A.3d 160 (Del. 2020).
81
Id. at 176. Cf. id. at 187 (Vaughn, J., concurring) (observing that “some parts” of
ineffective assistance claim “were not raised at trial or on appeal” and so were “not
formerly adjudicated” for purposes of indirect appeal).
82
Id. at 176.
20
Supreme Court did not explore or define this distinction, but it appears that “futile”
ineffective assistance claims, although academic, are nonetheless reviewable. 83
As discussed below, the Vesta Claim fails for substantially the same reasons
it failed at trial. It is thus futile, rather than procedurally barred. Moreover, the State
has not asserted Rule 61(i)(4). The Court is not required to deploy a procedural bar
on the State’s behalf.84 Accordingly, the Court will review all Thompson’s Claims,
even though the Vesta Claim “might rightly be considered” procedurally barred. 85
B. The Conflict Claims fail to state a claim for post-conviction relief.
Ineffective assistance claimants ordinarily must demonstrate prejudice to
obtain relief. 86 There is an exception, of sorts, crafted in cases involving attorney
conflicts of interest. Where there is an “actual conflict,” prejudice to the accused is
presumed.87 To determine whether these facts trigger an “actual conflict,” some
parsing is necessary. And as we will see, the “presumption of prejudice” is
somewhat misleading, as an “actual conflict” is only found where the lawyer’s
83
See id. (observing that “[t]here are times when” prior rejection of a substantive
claim “will render a follow-on ineffective assistance claim futile” and times when
an ineffective assistance claim “might” be considered formerly adjudicated).
84
See Younger, 580 A.2d at 556 (“Neither federal nor state courts are required to
relitigate in postconviction proceedings those claims [that] have been previously
resolved.” (emphasis added)); cf. Trest v. Cain, 522 U.S. 87, 89 (1997) (holding that
federal courts are not “required” to raise a “procedural default” sua sponte).
85
Green, 238 A.3d at 176.
86
See generally Strickland v. Washington, 446 U.S. 668, 687 (1984).
87
See generally, e.g., Cuyler v. Sullivan, 446 U.S. 335 (1980).
21
performance “adversely affects” the client. This essentially centralizes a prejudice
to the client element in the definition, rather than as a consequence of the assistance.
It is also worth reiterating that Trial Counsel was representing Thompson on
his direct appeal and had filed his opening brief before representing Rone in Superior
Court. We will assume, for purposes of further discussion, that this constituted a
species of “multiple representation,” although doing so is a bit of a stretch.
1. Thompson is not entitled to a presumption of prejudice because
Trial Counsel did not actively represent an actual conflict of interest that
adversely affected his performance during Thompson’s direct appeal.
The Sixth Amendment guarantees “the right to effective assistance of
counsel.” 88 As a “correlative” to this guarantee, 89 “[t]he Sixth Amendment . . .
provides for representation that is free from conflicts of interest[.]”90 Because the
“precise impact” of a conflict of interest “is difficult to measure[,]” 91 a defendant
may succeed on a conflict-based ineffective assistance claim without producing
“nice calculations as to the amount of prejudice” the conflict caused.92 Accordingly,
“a defendant who shows that a conflict of interest actually affected the adequacy of
his representation need not demonstrate prejudice in order to obtain relief.”93
88
Urquhart v. State, 203 A.3d 719, 728 (Del. 2019) (internal quotation marks
omitted).
89
Wood v. Georgia, 450 U.S. 261, 271 (1981).
90
Lewis v. State, 757 A.2d 709, 714 (Del. 2000) (internal quotation marks omitted).
91
Purnell v. State, 254 A.3d 1053, 1111 (Del. 2021).
92
Glasser v. United States, 315 U.S. 60, 76 (1942).
93
Cuyler, 446 U.S. at 349–50.
22
The mere presence of a conflict does not relieve the defendant of
demonstrating prejudice. “[T]he possibility of a conflict is insufficient to impugn a
criminal conviction.” 94 So the presumption of prejudice does not apply unless the
defendant “demonstrate[s] that an actual conflict of interest adversely affected his
lawyer’s performance.” 95 Accordingly, “prejudice is presumed ‘only if the
defendant demonstrates that counsel actively represented conflicting interests and
that ‘an actual conflict of interest adversely affected his lawyer’s performance.’” 96
The Court reviews de novo the question of whether an actual conflict of
interest adversely affected a lawyer’s performance.97 An “actual, relevant conflict
of interest[] [exists] if, during the course of the representation, the defendants’
interests do diverge with respect to a material legal or factual issue or to a course of
94
Id. at 350 (emphasis added).
95
Id. at 348 (emphases added). Cf. Hess v. Mazurkiewicz, 135 F.3d 905, 910 (3d
Cir. 1998) (“If the accused can establish only a potential conflict of interest,
prejudice must be proved.”).
96
Lewis, 757 A.2d at 718 (emphasis added) (quoting Strickland, 446 U.S. at 692).
97
E.g., Tillery v. Horn, 142 F. App’x 66, 69 (3d Cir. 2005) (citing Cuyler, 446 U.S.
at 341–42).
23
action.”98 Put another way, “[a]n actual conflict exists when a movant can show that
counsel actually had divided loyalties that affected his or her performance.” 99
“Since a possible conflict inheres in almost every instance of multiple
representation,”100 an actual conflict is “more likely to occur in cases of joint
representation—representation of more than one defendant at the same trial—rather
than . . . multiple representation—representations of defendants in different
trials.” 101 Where, as here, the defendant alleges a conflict arising from multiple
representation, he must show that his lawyer took “a positive step” on behalf of one
client but was “passive and failed to act” on the defendant’s behalf. 102 Conversely,
if the defendant alleges “passive lapses” rather than “positive acts[,]” he must
first . . . demonstrate that some plausible alternative defense strategy or
tactic might have been pursued. He need not show that the defense would
necessarily have been successful if it had been used, but that it possessed
sufficient substance to be a viable alternative. Second, he must establish that
98
Cuyler, 446 U.S. at 356 n.3 (Marshall, J., concurring in part and dissenting in part)
(emphases added) (internal quotation marks omitted). Accord Lewis, 757 A.2d at
718 (adopting Justice Marshall’s definition); see Gov’t of V.I. v. Zepp, 748 F.2d 125,
136 (3d Cir. 1984) (using similar definition); Melendez v. Carroll, 2006 WL 38921,
at *4 (D. Del. Jan. 5, 2006) (using similar definition). Cf. Del. Laws.’ Rules of Prof’l
Conduct R. 1.7(a) & cmt. 1 (Off. of Disciplinary Couns. 2020) (defining
“concurrent” conflicts of interest using similar principles and language).
99
Purnell, 254 A.3d at 1105 (internal quotation marks omitted).
100
Cuyler, 446 U.S. at 348.
101
United States v. Morelli, 169 F.3d 798, 810 (3d Cir. 1999).
102
Duncan v. Morton, 256 F.3d 189, 197 (3d Cir. 2001). Accord Tillery, 142 F.
App’x at 70; see Holloway v. Arkansas, 435 U.S. 475, 490 (1978) (identifying an
attorney’s decision to “refrain from” advocating on behalf of one client in favor of
advocating for another as the principal “evil” of conflicted representation).
24
the alternative defense was inherently in conflict with or not undertaken due
to the attorney's other loyalties or interests.103
“Until . . . [the] defendant shows that his counsel actively represented conflicting
interests, he has not established the constitutional predicate for his claim of
ineffective assistance.” 104
a. Trial Counsel’s decision to forgo attacks on Rone was consistent
with Thompson’s interests, which otherwise did not materially
diverge from Rone’s interests.
Thompson argues that Trial Counsel had an actual conflict because Rone and
Thompson’s interests were “incompatible.” 105 In Thompson’s view, Rone had an
interest in vindicating his own credibility, whereas Thompson had an interest in
challenging it. This reasoning overstates Rone’s role at trial and concludes, without
having shown, that Trial Counsel’s choice to avoid Rone on appeal was due to a
conflict and nothing else. But Rone’s testimony was barely relevant to the State’s
case. So attacking Rone on appeal would not have resulted in a new trial. Trial
Counsel left Rone out of Thompson’s appeal because Rone was of no use to
Thompson on appeal, not because of some conflicting interest with Rone.
103
Duncan, 256 F.3d at 197 (alteration and internal quotation marks omitted).
104
Mickens, 535 U.S. at 175 (alteration and internal quotation marks omitted).
105
Def.’s 2d Am. R. 61 Mot. at 31.
25
The Connells’ cause of death was not in dispute: it was no mystery that they
were shot to death. But no firearms were recovered. And no one saw the shooter(s).
So the case was a “whodunit,” not a “what happened.”
Rone testified to what happened, not who did it. Rone performed inconclusive
ballistics analyses on bullets discharged by an unidentified shooter from a missing
firearm. He then made the unremarkable observation that at least some of the bullets
came from a gun. Rone’s scientific display might have entertained the jury, thereby
curtailing the so-called “CSI effect.” 106 But he did little, if anything, to help prove
beyond a reasonable doubt that Thompson killed the Connells.
Bey was the witness with personal knowledge of Thompson’s participation
and ultimately, he was the only source of direct evidence. The State needed Bey. It
did not need Rone.
106
The CSI effect is a quasi-psychological phenomenon that describes how forensic
television shows may distort the jury’s perception of the size of the State’s burden.
As courts and scholars have documented, failure to introduce forensic evidence,
even when it is irrelevant and sufficient, non-forensic evidence has been adduced,
can lead juries to acquit based on an unfounded belief that the State under-
investigated its case or misidentified the defendant. See generally State v. Cooke,
914 A.2d 1078, 1083–88 (Del. Super. Ct. 2007); Tom R. Tyler, Viewing CSI and the
Threshold of Guilt: Managing Truth and Justice in Reality and Fiction, 115 Yale
L.J. 1050 (2006). There is good reason to think that the CSI effect is not a bit of
folklore. In at least one Delaware case, a defendant challenged the State’s attempt
to diminish the CSI effect. See Morgan v. State, 922 A.2d 395, 401–03 (Del. 2007).
In Morgan, the State told the jury that forensic testing was not necessary because the
testing “would not have worked.” Id. at 401. Although it approved the comments
on plain error review, the Supreme Court thought that the comments “undoubtedly”
would have been stricken had the defendant objected at trial. Id. at 403.
26
True, Bey was a co-conspirator. His credibility could not have been more at
issue. But Rone’s evidence did not corroborate Bey’s testimony. Bey testified that
the bullets at the scene came from Thompson. Rone testified that the bullets at the
scene came from a gun.
Given the importance of Bey’s character and testimony to Thompson’s
convictions, it is not surprising that Trial Counsel focused all of Thompson’s
appellate arguments on Bey and not Rone. Trial Counsel’s arguments
“maximize[d]” the likelihood” that Thompson’s convictions would be overturned.107
Rone-based arguments did not.
Properly understood, Trial Counsel was loyal to Thompson. Thompson
wanted his convictions overturned. Arguments against Bey gave him the best
chance of doing so. Accordingly, Trial Counsel disregarded Rone not due to an
actual conflict, but rather because Rone was irrelevant to Thompson’s defense.108
Indeed, “nothing relating to the ballistics evidence was . . . considered . . . an issue”
on appeal. 109
Nor did Thompson and Rone’s interests “diverge . . . material[ly]” once
Thompson appealed and Rone was indicted. 110 Thompson needed to show the
107
Neal v. State, 80 A.3d 935, 946 (Del. 2013) (internal quotation marks omitted).
108
Maurer Aff. ¶¶ 7–8.
109
Id.110
Cuyler, 446 U.S. at 356 n.3 (Marshall, J., concurring in part and dissenting in
part). Accord Lewis, 757 A.2d at 718 (adopting Justice Marshall’s definition).
27
Supreme Court that his convictions were infirm. Rone needed to convince a jury
that he was not a thief. But Rone’s work was not material to Thompson’s trial.
Necessarily, then, Thompson’s appeal did not turn on Rone’s credibility. That is
why Trial Counsel “did not even consider that there was any potential problem . . .
[or] conflict of interest” when he agreed to represent Rone. 111 He did not need to
“actively represent[] conflicting interests” to advocate effectively for both clients.112
In the end, any conflict did not “adversely affect” Trial Counsel’s
performance. 113 Trial Counsel picked Bey over Rone as his target on appeal not
because he had an actual conflict, but rather because the ballistics evidence would
not have reversed Thompson’s convictions. That decision was faithful to
Thompson’s objectives. It was not disloyal. 114 Having shown neither an adverse
effect nor an actively conflicted representation, Thompson is not entitled to a
presumption of prejudice.
b. Thompson’s contrary arguments do not show otherwise.
Thompson misattributes Trial Counsel’s choice to forgo Rone as a subject of
appellate briefing to an actual conflict. The Court has not found any evidence that
the “multiple representation” adversely affected Trial Counsel’s performance.
111
Maurer Aff. ¶ 8.
112
Lewis, 757 A.2d at 718 (internal quotation marks omitted).
113
See Mickens, 535 U.S. at 172 n.5 (clarifying that an actual conflict “is a conflict
of interest that adversely affects counsel’s performance” (emphasis added)).
114
See Purnell, 254 A.3d at 1105 (requiring divided loyalties for an actual conflict).
28
Accordingly, the Court does not find an “actual conflict.” Thompson’s contrary
arguments are unavailing.
i. The Impeachment Argument
Thompson contends that, but for an actual conflict, Trial Counsel could have
alerted the Supreme Court to the evidence he obtained during his representation of
Rone and then, at the very least, requested a remand to relitigate Rone’s character.
Thompson thus tacitly treats Trial Counsel’s failure to attack Rone’s character as a
decision to defend Rone’s character. In addition to ignoring Rone’s irrelevance, this
argument presupposes re-litigation of Rone’s character would have been permitted.
Delaware courts have considered Rone’s indictment and its impact on the
reliability of his trial testimony.115 In doing so, every court has reached the same
conclusion. Discovery of new evidence that tends to impeach Rone’s character is
115
See generally Dixon v. State, 2021 WL 3404223 (Del. Aug. 4, 2021); Sierra v.
State, 242 A.3d 563 (Del. 2020); Davenport v. State, 2019 WL 2513771 (Del. June
17, 2019); Fowler v. State, 194 A.3d 16 (Del. 2018); State v. Smith, 2022 WL 601865(Del. Super. Ct. Feb. 25, 2022); State v. Washington, 2021 WL 5232259 (Del. Super.
Ct. Nov. 9, 2021); State v. Coleman, 2021 WL 529427 (Del. Super. Ct. Feb. 12,
2021); State v. Bezarez, 2020 WL 3474145 (Del. Super. Ct. June 25, 2020); State v.
Damiani-Melendez, 2020 WL 3474144 (Del. Super. Ct. June 23, 2020); State v.
Phillips, 2019 WL 1110900 (Del. Super. Ct. Mar. 11, 2019); State v. Romeo, 2019
WL 918578 (Del. Super. Ct. Feb. 21, 2019); State v. Pierce, 2018 WL 4771787 (Del.
Super. Ct. Oct. 1, 2018); State v. George, 2018 WL 4482504 (Del. Super. Ct. Sept.
17, 2018).
29
not a ground for invalidating a conviction unless Rone was “vital” to proving the
defendant’s guilt. 116
A rule that limits character-based post-conviction relief to cases involving
“vital” witnesses reflects the circumstances which new impeachment evidence may
be deemed so material as to warrant a new trial. Evidence that “merely” impeaches
116
Fowler, 194 A.3d at 22. Accord Sierra, 242 A.3d at 570; Romeo, 2019 WL
918578, at *29. See, e.g., Dixon, 2021 WL 3404223, at *3–4 (Rone’s indictment
did not warrant new trial because the State proved defendant’s guilt with evidence
“other than that offered by Rone”); Smith, 2022 WL 601865, at *3 (Rone’s
indictment did not warrant new trial because Rone “did not testify”); Washington,
2021 WL 5232259, at *8 (Rone’s indictment did not warrant new trial because Rone
“was not central,” as “other more significant evidence supported the jury’s verdict”);
Coleman, 2021 WL 529427, at *7 (Rone’s indictment did not warrant new trial
because Rone could not “link” his findings to “any gun” defendant used to commit
murder); Bezarez, 2020 WL 3474145, at *3 (Rone’s indictment did not warrant new
trial because “Rone’s testimony was not a key component of identifying the
defendant as the perpetrator,” as a video and eyewitnesses identified defendant);
Damiani-Melendez, 2020 WL 3474144, *6 (Rone’s indictment did not warrant new
trial because “Rone’s report added little, if anything, to the case, and was nearly, if
not entirely, superfluous,” as defendant’s conviction “did not turn on Rone’s report”
and other evidence of guilt was “overwhelming”); Phillips, 2019 WL 1110900, at
*7 (Rone’s indictment did not warrant new trial because “Rone’s report was not used
to establish identity of the shooters,” as “eyewitnesses provided that critical
evidence” and evidence otherwise was “overwhelming”); Romeo, 2019 WL 918578,
at *29 (Rone’s indictment did not warrant new trial because “Rone’s testimony was
not at all vital to [defendant’s conviction]” and an array of other evidence established
defendant’s guilt apart from Rone); George, 2018 WL 4482504, at *4 (Rone’s
indictment did not warrant new trial because Rone “could not match” his ballistics
evidence to “any of the firearms in this case”). See also Pierce, 2018 WL 4771787,
at *4–5 (Rone’s indictment did not warrant exclusion of his testimony because
Rone’s indictment was returned nine years after he participated in chain of custody,
which otherwise was independently corroborated).
30
a witness does not warrant a new trial.117 To the contrary, new impeachment
evidence warrants a new trial only if it “attacks the credibility of the witness in the
case at bar specifically, rather than impeaching the witness’s credibility in
general.” 118 Accordingly, a defendant who seeks a new trial just so he may attack a
witness’s credibility using the witness’s past misconduct must show how the
misconduct “undermined the credibility” of the witness’s testimony in the
defendant’s particular case.119
Here, Rone pleaded guilty to falsifying his time sheets. Rone was not accused
of, or convicted for, fabricating the expert reports he used against Thompson (or
anyone else) or perjuring himself during Thompson’s trial (or any time else). As a
result, every court to consider Rone’s indictment has found that stealing “extra pay”
for oneself is not the same as “submitting . . . false evidence logs and testing
documentation” against someone else.120 So Trial Counsel could not impeach Rone
using general bad character evidence that bore no relation to Thompson’s guilt.
Generally impeaching Rone, whether on appeal or through a supplemental
remand, was not a viable road to take.121 In fact, it is not a viable road today.
117
Lloyd v. State, 534 A.2d 1262, 1267 (Del. 1987).
118
Purnell, 254 A.3d at 1098–99. Accord Dixon, 2021 WL 3404223, at *4.
119
Dixon, 2021 WL 3404223, at *4. See Hicks v. State, 913 A.2d 1189, 1195 (Del.
2006) (denying new trial because impeachment evidence was not “substantive”).
120
Pierce, 2018 WL 4771787, at *3–4. See supra note 116 (collecting support).
121
E.g., Hicks, 913 A.2d at 1195 (denying new trial because proffered evidence was
“merely impeaching” rather than “substantive”).
31
Assuming Rone was a “vital” witness, Thompson’s “new evidence” would not
suggest that Rone falsified his testimony in this case.
PCR Counsel investigated the discovery the State produced to Trial Counsel
during Rone’s case. It showed that Rone doctored his work hours on October 3,
October 10, October 11, October 19, and October 26, 2016. 122 Rone, however,
authored the 2016 report on October 5, 2016. 123 That report also was peer
reviewed.124 And Thompson does not claim Rone’s peers are unreliable. Taken
together, Thompson would not have shown that “Rone’s . . . convictions undermined
the credibility of [his] testimony in this case.”125 This failure would be
“dispositive[.]”126
ii. The Positional Conflict Argument
Thompson’s “positional conflict” argument is based on a distinguishable
Delaware Supreme Court decision, Williams v. State. 127
In Williams, defense counsel represented a capital defendant, Joseph
Williams. After the penalty phase, the jury voted 10-2 in favor of death. Williams’s
defense counsel argued on appeal that the sentencing court was not required to give
122
See Def.’s 2d Am. R. 61 Mot. at 11–13.
123
Id. at 12.
124
A26–57.
125
Dixon, 2021 WL 3404223, at *4.
126
Id.127
805 A.2d 880 (Del. 2002).
32
“great weight” to the jury’s vote, but did. At the same time, Williams’s defense
counsel represented another capital defendant, Sadiki Garden.128 Garden received
the exact opposite jury vote: 10-2 against death.129 Defense counsel argued on
Garden’s appeal that the sentencing court was required to give “great weight” to the
jury’s vote, but did not.130
The Delaware Supreme Court found that Williams and Garden faced the same
legal question: whether a sentencing court must give great weight to a jury’s penalty
recommendation.131 But defense counsel’s positions would have led to
contradictory results. If Williams were right, then Garden would be executed. But
if Garden were right, then Williams would be executed. The Supreme Court held
this to be a “positional conflict.” Defense counsel could not provide effective
assistance to both clients without, quite literally, “compromising” one client in favor
of the other.132
The Thompson-Rone representation did not present a positional conflict. If
Trial Counsel were successful for Thompson, that would not mean Rone falsified
128
Garden v. State, 815 A.2d 327 (Del. 2003).
129
The jury recommended a life sentence instead.
130
Garden has a lively procedural history. On remand for failing to apply the correct
standard, the court re-imposed Garden’s death sentence. See State v. Garden, 831
A.2d 352 (Del. Super. Ct. 2003). The Supreme Court reversed again and ordered
the court to impose a life sentence. See Garden v. State, 844 A.2d 311 (Del. 2004).
131
Williams, 805 A.2d at 882.
132
Id. at 881–82.
33
his time sheets. If Trial Counsel were successful for Rone, that would not mean
Thompson murdered the Connells. In either case, Trial Counsel would never have
been required, as in Williams, to take mutually inconsistent legal positions.
Undeterred, Thompson urges that Rone could not beat his charges unless Trial
Counsel maintained Rone’s honesty, whereas Thompson could not win his appeal
unless Trial Counsel exposed Rone’s dishonesty. A positional conflict does “arise[]
when two or more clients have opposing interests in unrelated matters.” 133 But those
“opposing interests” must be staked in “the same legal question[.]” 134
Thompson and Rone’s cases did not involve the same legal question. The
legal question presented in Thompson’s case was whether he intentionally murdered
the Connells. In contrast, the legal question presented in Rone’s case was whether
he intentionally stole from DSP. Given these differences, Counsel could, and did,
preserve both interests without sacrificing one. 135 There was no positional conflict.
iii. The Ethical Rules Argument
133
Id. at 881. Cf. Del. Laws.’ Rules of Prof’l Conduct R. 1.7(b).
134
Williams, 805 A.2d at 881.
135
See id. at 881–82 (“[T]he question is whether the lawyer can effectively argue
both sides . . . without compromising the interests of one client or the other. The
lawyer must attempt to strike a balance between the duty to advocate any viable
interpretation of the law for one client’s benefit versus the other client’s right to
insist on counsel’s fidelity to their legal position.”).
34
Thompson next combines a few professional rules to argue that Trial Counsel
could not criticize Rone’s credibility on appeal without violating his ethical duties
of confidentiality and loyalty. This argument fails for at least three reasons.
First, ethical rules do not govern an ineffective assistance analysis. 136 Second,
ethical rules are incorporated into the very actual conflict standard Thompson did
not satisfy. 137 And third, Thompson’s logic—i.e., Trial Counsel’s dual
representation alone prevented him from attacking Rone—would prove too much.
If simply representing two defendants violated the Sixth Amendment, then all joint
and multiple representations would be unconstitutional. That is not the law. “[A]
mere theoretical division of loyalties” does not deny the right to counsel. 138 Only
conflicts that adversely affect counsel’s performance do. As explained, however,
Trial Counsel’s performance for Thompson was not adversely affected by his duties
to Rone.
In this vein, recall that Trial Counsel’s representation was, at best, “multiple.”
Multiple representation might be ill-advised, especially when one client was a
136
See, e.g., Ploof v. State, 75 A.3d 840, 852 (Del. 2013) (describing professional
conduct regulations as “only guides”); Lewis, 757 A.2d at 718 (acknowledging that
professional conduct regulations “are not intended to create substantive or
procedural rights”).
137
See Lewis, 757 A.2d at 718–19 (adopting Cuyler’s actual conflict definition,
which was engrafted from the ABA, and comparing it favorably against professional
conduct regulations).
138
Purnell, 254 A.3d at 1107 (internal quotation marks omitted).
35
witness against the other in the past. But that does not make it unconstitutional.
Multiple representations pose possible conflicts,139 which are “insufficient to
impugn a criminal conviction.”140 Thompson, then, had to “establish that the
alternative defense” (here, attacking Rone) “was inherently in conflict with or not
undertaken due to the attorney's other loyalties or interests.”141 Here, ballistics
evidence was not key to Thompson’s convictions. So Counsel’s choice to avoid
raising issues concerning Rone on appeal was not a “positive act” of favoritism.142
To the contrary, Trial Counsel’s Bey-based arguments were loyal to Thompson.143
Accordingly, Trial Counsel did not “actually ha[ve] divided loyalties[,]” let alone
ones that “adversely affected his . . . performance.” 144
iv. The Delaware-Is-Different Argument
Finally, Thompson proposes changes in the law. He observes that Delaware
law can build above the floor federal law has set. Using this principle, Thompson
posits that, because Delaware has a robust body of corporate fiduciary law, and
139
Cuyler, 446 U.S. at 348; Duncan, 256 F.3d at 197.
140
Cuyler, 446 U.S. at 350.
141
Duncan, 256 F.3d at 197 (internal quotation marks omitted).
142
Id.143
See Maurer Aff. ¶¶ 7–8 (“[C]ounsel did not challenge the ballistics evidence . . .
and, in particular, the testimony presented by [] Rone” because “Counsel did not
believe that the evidence was significant insofar as the defense theory was concerned
. . . . The Thompson case was on direct appeal and nothing relating to the ballistics
evidence was argued or considered as an issue . . . .”).
144
Purnell, 254 A.3d at 1105 (internal quotation marks omitted).
36
because lawyers are fiduciaries, Delaware law has the means to protect defendants
from both actual and possible conflicts. But even if this reasoning were sound,145
the Court could not accept it. The Delaware Supreme Court has adopted federal
actual conflict standards.146 The Court cannot overrule the Supreme Court.
Thompson was required to show an actual conflict. He did not. Without an
actual conflict, Thompson must show prejudice. 147 He cannot.
2. Disregarding Rone on appeal was not prejudicial.
Having “overemphasi[zed] . . . the presumption of prejudice[,]”148 Thompson
does not argue prejudice. To be sure, there is none.
“[I]t is . . . possible to bring [an ineffective assistance] claim based on
counsel’s failure to raise a particular claim, but it is difficult[.]” 149 That is because
“appellate counsel ‘need not (and should not) raise every non-frivolous claim[.]’”150
So a defendant who challenges appellate counsel’s failure to raise a particular claim
cannot show ineffective assistance unless (i) counsel “omit[ted] issues that are
145
But see Mickens, 535 U.S. at 174 (cautioning that reviewing courts cannot
“unblinkingly” assume that “all kinds of alleged ethical conflicts[]” are
constitutionally problematic (internal quotation marks omitted)).
146
E.g., Purnell, 254 A.3d at 1107–08; Lewis, 757 A.2d at 718–19. See also State
v. Xenidis, 212 A.3d 292, 300–04 (Del. Super. Ct. 2019).
147
See, e.g., Hess, 135 F.3d at 910.
148
United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988) (internal quotation
marks omitted).
149
Neal, 80 A.3d at 946 (alteration and internal quotation marks omitted).
150
Id. (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000)).
37
clearly stronger than those [counsel] presented[;]”151 and (ii) “but for” counsel’s
omissions, the defendant “would have prevailed on his appeal.” 152
Here, Rone-based arguments would not have been clearly stronger than Bey-
based ones. Without Bey’s testimony, the State would not have identified Thompson
or adduced any direct evidence of his guilt. Without Rone’s testimony, the jury
would have learned less about bullets. The State proved Thompson’s guilt without
Rone and so new evidence that may have generally impeached his character would
not have resulted in a new trial or conviction reversal. Accordingly, the Conflict
Claims fail for lack of prejudice.
3. An evidentiary hearing is unwarranted.
Finally, Thompson requests an evidentiary hearing on the Conflict Claims.
But PCR Counsel has already conducted a thorough investigation into the Conflict
Claims. Those efforts did not yield or omit anything that would have made Rone’s
character impeachable at trial. Neither of Rone’s reports identified Thompson as the
shooter. Because Rone’s testimony was not vital to proving the State’s case, the
credibility of his expert reports is not material. 153 Moreover, Thompson does not
151
Hudson v. State, 2020 WL 362784, at *7 (Del. Jan. 21, 2020) (internal quotation
marks omitted). See also Fink v. State, 2006 WL 659302, at *2 n.7 (Del. Mar. 14,
2006) (rejecting a multi-factor analysis in favor of a “clearly stronger” test).
152
Fink, 2006 WL 659302, at *2.
153
See, e.g., Dixon, 2021 WL 3404223, at *4; Davenport, 2019 WL 2513771, at *3.
38
challenge the credibility or completeness of Trial Counsel’s affidavit. So it is not
clear what insights Trial Counsel would add to the discussion either.
There is no right to a post-conviction evidentiary hearing. 154 As a result, the
Court has “broad discretion” 155 to deny one, especially if a hearing would not change
the outcome. 156 Having considered Thompson’s motion and the entire record, the
Court concludes that an evidentiary hearing is not “desirable”157 or what “justice
dictates.” 158 Accordingly, the request for a hearing is denied.
C. The Vesta Claim fails to state a claim for post-conviction relief.
Turning to the Vesta Claim, Thompson argues that Trial Counsel was
ineffective because he failed to conduct better research on the T-Mobile-Metro PCS
merger. Had he done so, Thompson says, he would have found U.S. District Court
for the District of Oregon opinions implying that Vesta could not be used to pay for
Metro PCS in 2013. The Vesta Claim is a traditional ineffective assistance claim
subject to the Strickland standard. On that standard, a defendant must show “first,
154
E.g., Getz v. State, 2013 WL 5656208, at *1 (Del. Oct. 15, 2013).
155
Winn v. State, 2015 WL 1469116, at *2 (Mar. 30, 2015).
156
See Hawkins v. State, 2003 WL 22957025, at *1 (Del. Dec. 10, 2003) (“It is well-
settled that the Superior Court is not required to conduct an evidentiary hearing upon
a Rule 61 motion if, on the face of the motion, it appears that the petitioner is not
entitled to relief.”); Owens, 2021 WL 6058520, at *15 (“An evidentiary hearing is
not empty ritual[]” or “an opportunity . . . to address issues that are not material to a
favorable determination of the defendant’s claims.”).
157
Del. Super. Ct. Crim. R. 61(h)(1).
158
Id. R. 61(h)(3).
39
that his counsel's representation fell below an objective standard of reasonableness
and, second, that the deficiencies in counsel's representation caused him substantial
prejudice.”159 Proving both deficient performance and prejudice is a “formidable
obstacle[.]”160 Thompson cannot clear it.
1. Counsel did not perform deficiently.
As to the performance prong, the Vesta Claim must overcome “a strong
presumption that counsel’s conduct falls within a wide range of reasonable
professional assistance.” 161 So Thompson must establish that “no reasonable lawyer
would have conducted the defense as [Trial Counsel] did.”162 He cannot.
To begin, Trial Counsel’s approach to excluding the Vesta evidence was
reasonable. The State sought to prove that Thompson owned the Kenny AAAA
phone by introducing evidence suggesting that his T-Mobile payments were actually
Metro PCS payments. In doing so, the State called a T-Mobile records custodian to
testify that the carriers merged in 2013 and Metro PCS survived as a T-Mobile
affiliate. Trial Counsel objected, arguing that the records custodian was not
competent to opine on whether or when a merger occurred. Indeed, he observed that
Thompson’s payment records themselves belied the existence of a merger. Looking
159
Green, 238 A.3d at 174 (citing Strickland, 466 U.S. at 687–88).
160
Id.
161
Id. (internal quotation marks omitted).
162
Id. (internal quotation marks omitted).
40
to Trial Counsel’s decision, rather than the outcome,163 it cannot be said that no
reasonable defense lawyer would have used the State’s own proffer against it to
support exclusion of evidence tending to identify the lawyer’s client at the scene of
a double homicide.
Moreover, Trial Counsel extracted a crucial fact on cross-examination: the
Kenny AAAA phone was deactivated in 2013. This fact was consistent with others,
e.g., that Thompson (i) had a different phone; (ii) had been paying T-Mobile, not
Metro PCS, in 2013; and (iii) did not pay Metro PCS until 2014. Using these facts,
Trial Counsel argued in summation that the State’s evidence did not establish that
Thompson was paying for the Kenny AAAA Phone in 2013. Contextualized, Trial
Counsel tried to create reasonable doubt as to Thompson’s whereabouts on the night
of the murders. Looking to Trial Counsel’s decision, rather than the outcome, it
cannot be said that no reasonable defense lawyer would have argued his client was
not present at a shooting if the prosecution hinged on placing his client where the
victims were shot.
163
See, e.g., Neal, 80 A.3d at 942 (“Because it is all too easy for a court examining
counsel’s defense after it has proved unsuccessful to succumb to the distorting
effects of hindsight, counsel’s actions are afforded a strong presumption of
reasonableness . . . . [A reviewing court’s] task is to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from the counsel’s
perspective at the time.” (alteration and internal quotation marks omitted)).
41
To be sure, Trial Counsel’s tactics were not the only possible ones. But the
ineffective assistance standard does not require a defense lawyer to be perfect.164 It
requires only that the lawyer’s strategies be reasonable. 165 Here, the upshot of Trial
Counsel’s objection was the same as what Thompson now alleges: Thompson’s
2013 Vesta payments could not have been made to Metro PCS. By advancing the
same argument, Thompson has all but conceded Trial Counsel’s reasonableness.
2. Any error did not prejudice the outcome.
Even assuming Trial Counsel performed deficiently, Thompson still must
establish prejudice: “a reasonable probability that, but for counsel’s professional
errors, the result of the proceeding would have been different.” 166 “A reasonable
probability means a probability sufficient to undermine confidence in the outcome .
164
E.g., Harrington v. Richter, 562 U.S. 86, 110 (2011) (“[T]here is no expectation
that competent counsel will be a flawless strategist or tactician[.]”); Burns v. State,
76 A.3d 780, 788 (Del. 2013) (“[E]ven evidence of isolated poor strategy,
inexperience, or bad tactics does not necessarily amount to ineffective assistance of
counsel.” (alterations and internal quotation marks omitted)); see also United States
v. Hasting, 461 U.S. 499, 508–09 (1983) (“[T]aking into account the human
fallibility of the participants, there can be no such thing as an error-free, perfect trial,
and . . . the Constitution does not guarantee [one].”).
165
E.g., Strickland, 466 U.S at 689 (observing that there are “countless ways” an
attorney can provide ineffective assistance and that defense counsel enjoys a “range
of legitimate decisions regarding how best to represent a criminal defendant”).
166
Swan v. State, 248 A.3d 839, 859 (Del. 2021) (internal quotation marks omitted).
See Albury v. State, 551 A.2d 53, 60 (Del. 1988) (“[I]neffectiveness claims alleging
a deficiency in . . . performance are subject to a general requirement that the
defendant affirmatively prove prejudice.” (internal quotation marks omitted)).
42
. . .” 167 And “[t]he likelihood of a different result must be substantial[,] not just
conceivable.”168 Failure to state prejudice with particularity is “fatal[.]”169
Accordingly, Thompson “must make concrete allegations of actual prejudice and
substantiate them[.]”170
The Vesta evidence was not the only evidence that tended to identify
Thompson. Nor was it the best. Bey testified that Thompson killed the Connells.
A rational juror could have found that Bey’s testimony alone was sufficient evidence
of Thompson’s guilt. Even so, Thompson’s presence at the scene was corroborated
by (i) CSLI; (ii) call records showing that the Kenny AAAA phone called Benson
before the murders; (iii) call records showing that the Kenny AAAA phone was
contacted by Thompson’s girlfriend immediately after the murders; and (iv) the fact
that Thompson was working near the Paladin Club when the murders occurred.
Against all this, Thompson had to show with particularity a substantial probability
that, but for Trial Counsel’s failure to further undermine the Vesta evidence,
Thompson would have been acquitted. He did not. Thompson suffered no prejudice.
In sum, Thompson failed to show that Counsel performed deficiently and that
his errors prejudiced Thompson’s defense. Accordingly, the Vesta Claim fails.
167
Green, 238 A.3d at 174 (internal quotation marks omitted).
168
Swan, 248 A.3d at 859 (internal quotation marks omitted).
169
Purnell v. State, 106 A.3d 337, 342 (Del. 2014) (internal quotation marks
omitted).
170
Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996).
43
3. The Oregon cases do not support the Vesta Claim.
Thompson’s Oregon caselaw reinforces these conclusions. For one thing, an
Oregon federal court does not bind a Delaware state court. Counsel had to support
his objection with the Delaware Rules of Evidence and Delaware cases interpreting
them. The evidentiary question presented at the hearing was not novel or complex
and so it was reasonable for Trial Counsel to decline a cross-country research tour
for extra-jurisdictional authority.171
For another, one of Thompson’s cases observed that T-Mobile and Metro PCS
did merge in 2013, with Metro PCS surviving to its own market share.172 So even
if, as Thompson insists, Vesta and Metro PCS had a contentious business
171
See Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (explaining that defense
counsel is not ineffective for “mak[ing] a reasonable decision that makes particular
investigations unnecessary” (internal quotation marks omitted)). See also
Harrington, 562 U.S. at 110 (“[A]n attorney may not be faulted for a reasonable
miscalculation . . . or for failing to prepare for what appear to be remote
possibilities.”); Glenn v. Wynder, 743 F.3d 402, 407 (3d Cir. 2014) (“In order to
satisfy due process, [a defendant’s] trial must have been fair; it need not have been
perfect.”); Khan v. Capra, 2020 WL 6581855, at *5 (S.D.N.Y. Nov. 10, 2020) (“A
defendant is entitled to a competent lawyer, not an omniscient one.” (internal
quotation marks omitted)); Nelson v. United States, 406 F. Supp. 2d 73, 75 (D.D.C.
2005) (“The constitution does not guarantee the right to clairvoyant counsel.”); State
v. Zebroski, 2001 WL 1079010, at *2 (Del. Super. Ct. Aug. 31, 2001) (“An
ineffective assistance claim” does not invite “speculation about what trial counsel
could have done better.”). See generally Strickland, 466 U.S. at 698 (“The object of
an ineffective assistance claim is not to grade counsel’s performance.”).
172
See Vesta Corp. v. Amdocs Mgmt. Ltd., 129 F. Supp. 3d 1012, 1028 (D. Or. 2015).
44
arrangement, the Oregon caselaw still would have strengthened the State’s
fundamental point: T-Mobile controlled Metro PCS in 2013.
At most, Counsel would have gleaned from the Oregon cases technical or
historical knowledge about Vesta’s interactions with the companies. The
“conceivable” influence of those details, however, would not have been enough to
convince the Court that the evidentiary issue went any less to weight or the jury that
Thompson was any less guilty. 173 So the Oregon cases were not substantially likely
to change an outcome either. Trial Counsel’s failure to cite them was neither
unreasonable nor prejudicial.
D. The Commerce Street Claim fails to state a claim for post-conviction relief.
Finally, the Court turns to the Commerce Street Claim. Recall that the
murders occurred in 2013. Thompson’s trial was held in 2017. The State asked
Thompson’s supervisor for the address of Leonard’s Trucking. The State did not
ask for Leonard’s “2013” address. So the supervisor answered in the present tense.
Thompson now claims Trial Counsel ineffectively failed to object because that
answer misled the jury into thinking Leonard’s owned the 20 Commerce Street lot
in 2013, even though it allegedly did not own the 20 Commerce Street lot until 2014.
173
Swan, 248 A.3d at 859 (internal quotation marks omitted).
45
Since the Commerce Street Claim fails for lack of prejudice, the Court will assume
for analytical purposes that Trial Counsel performed deficiently.174
Bey testified that Thompson killed the Connells. CSLI corroborated Bey’s
testimony. The FBI agent explained that cell towers captured Thompson within a
seven-minute driving distance from the Paladin Club both before and after the
murders. Testimony confirmed that the 20 Commerce Street lot was mapped within
that vicinity. CSLI freezes the target within a triangulated zone; it does not snap a
street-level picture.175 So whether Thompson was physically “at Leonard’s,” or
simply in the same neighborhood, did not matter. CSLI showed that Thompson was
close enough to the Paladin Club to ambush a couple as they came home from dinner
and then get away quickly. Given that reality, it is difficult to imagine that the jury
ascribed case-dispositive importance to whether Thompson was seven minutes away
or seven minutes away and at Leonard’s. Either way, he was in the area.
True, the State may have gained something from matching CSLI with
Thompson’s supervisor’s testimony. But any marginal advantage to the State was
174
See Strickland, 466 U.S. at 698 (“If it is easier to dispose of an ineffective
assistance claim on the ground of lack of sufficient prejudice . . . that course should
be followed.”); see also Ruffin v. State, 2019 WL 719038, at *2 (Del. Feb. 19, 2019)
(“[T]here is no need to analyze whether an attorney performed deficiently if the
alleged deficiency did not prejudice the movant.”).
175
See generally Cell Phone Location Tracking, Nat’l Assoc. of Crim. Def. Laws.,
https://www.nacdl.org/Document/2016-06-07_CellTrackingPrimer_Final(v2)(2)
(last visited May 22, 2022).
46
not a disadvantage to Thompson. Trial Counsel portrayed Thompson as a hard
worker who walked the straight-and-narrow path and did not need extra money from
a murder-for-hire scheme. By telling the jury Thompson was “at Leonard’s,” the
State also told the jury that Thompson was “at work.” This bolstered the defense.176
Given all the other evidence, any failure by Trial Counsel to audit Leonard’s
2013 property portfolio would not undermine the Court’s confidence in the verdict.
Even if the jury thought Thompson was at work, it still had to determine whether he
was the shooter. Bey said Thompson was the shooter and other evidence
corroborated Bey’s testimony. A copy of Leonard’s 2014 lease would not have
shortened Thompson’s proximity to the scene, or spoken to his intent or motivation,
in 2013. Accordingly, the Commerce Street Claim fails for lack of prejudice.
CONCLUSION
Thompson failed to demonstrate that Trial Counsel had an actual conflict of
interest or otherwise represented him ineffectively. Accordingly, his Rule 61 motion
is DENIED.
IT IS SO ORDERED.
176
Trial Counsel understood this, Maurer Aff ¶ 11 (describing the “at work” issue
as “strategic”), and the law gave him the discretion, exercised non-prejudicially here,
to let the issue go, see, e.g., Taylor v. State, 32 A.3d 374, 385–88 (Del. 2011)
(reviewing failure to object claims for prejudice under Strickland standard).
47
Charles E. Butler, Resident Judge
48