Neal v. State, 80 A.3d 935

Background

On Dec. 31, 2008, four men robbed three Wilmington businesses; police arrested four occupants of a white Chevrolet Lumina and Neal was later indicted on 36 counts related to the robberies.
Three co-defendants (Berry, Brown, Reams) took plea deals in exchange for testimony; Brown testified against Neal at trial but had earlier told police Neal was not involved; Berry and Reams gave out-of-court statements tending to exculpate Neal and invoked the Fifth when called at trial.
Trial counsel did not request a Bland accomplice-credibility instruction regarding Brown’s testimony; the trial court did not give one sua sponte; Neal was convicted on all counts and sentenced to 54 years.
Trial counsel sought to admit Berry’s and Reams’s out-of-court statements under 11 Del. C. § 3507; the court excluded them; counsel did not seek admission under D.R.E. 804(b)(3).
Neal filed a Rule 61 postconviction motion claiming ineffective assistance (trial and appellate counsel) for failing to request a Bland instruction and for failing to argue admissibility under D.R.E. 804(b)(3); the Superior Court denied relief and the denial was appealed.

Issues

Issue	Neal's Argument	State's Argument	Held
1) Trial counsel ineffective for not requesting a Bland accomplice-credibility instruction	Failure to request Bland undermined ability to discredit co-defendant Brown	Counsel error, if any, did not prejudice Neal given overwhelming independent evidence	Counsel was deficient under Strickland prong one, but no prejudice — claim fails
2) Appellate counsel ineffective for not raising Bland on direct appeal	Omitted Bland argument (Smith decision available during appeal) was "clearly stronger" and could have produced new trial	Even if omission was unreasonable, Neal cannot show plain error or likely success on appeal given the record	Appellate counsel fell below objective standard but omission was not prejudicial under plain-error/Strickland — claim fails
3) Trial counsel ineffective for not seeking admission of co-defendants’ out-of-court statements under D.R.E. 804(b)(3)	Statements exculpatory as to Neal and should have been admitted	Statements mix self-inculpatory and non-self-inculpatory parts; non-self-inculpatory parts are presumptively inadmissible and overall not trustworthy	Counsel reasonably declined to pursue 804(b)(3); no deficiency shown — claim fails
4) Appellate counsel ineffective for not arguing 804(b)(3) admissibility on appeal	Failure to press 804(b)(3) was error that would have shown plain error on appeal	Under Smith and Demby, non-self-inculpatory portions would be inadmissible and admitted self-inculpatory parts would not exculpate Neal given multi-participant crime	No plain error: non-self-inculpatory portions likely inadmissible and self-inculpatory portions would not have changed outcome — claim fails

Key Cases Cited

Bland v. State, 263 A.2d 286 (Del. 1970) (recognizing need for special accomplice-credibility instruction)
Smith v. State, 991 A.2d 1169 (Del. 2010) (trial counsel’s failure to request Bland instruction can be deficient; non-self-inculpatory statements under 804(b)(3) are presumptively inadmissible)
Brooks v. State, 40 A.3d 346 (Del. 2012) (trial courts must give the modified Bland instruction or commit plain error)
Demby v. State, 695 A.2d 1152 (Del. 1997) (factors for assessing corroboration/trustworthiness under D.R.E. 804(b)(3))
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance framework)
Williamson v. United States, 512 U.S. 594 (1994) (courts must be wary of mixing self-inculpatory and collateral statements under the penal-interest exception)

Outcome: Court affirmed denial of postconviction relief; neither trial nor appellate counsel was ineffective in a way that prejudiced Neal.