State v. Flowers, 2016 Del. LEXIS 553

Background

Damone Flowers was convicted of first-degree murder and felony firearm (trial Oct. 30, 2002); this Court affirmed his convictions on direct appeal in Aug. 2004.
Flowers filed a pro se post-conviction motion in 2005 (dismissed) and a second pro se Rule 61 motion in May 2012, later amended with counsel.
The 2012 motion asserted five ineffective-assistance claims, focusing primarily on trial counsel’s failure to object to admission of five § 3507 videotaped statements for lack of a foundational question about truthfulness (Claim One) and appellate counsel’s failure to raise that issue (Claim Five).
A Superior Court Commissioner recommended granting relief on Claim One under the Rule 61(i)(5) miscarriage-of-justice exception; the Superior Court adopted that recommendation in part and granted relief on Claims One and Five.
The State appealed, arguing Flowers’ second Rule 61 motion was time-barred (Rule 61(i)(1)) and claims were repetitive (Rule 61(i)(2)); this Court reviewed whether the procedural bars and the § 3507/foundation and Strickland analyses were properly applied.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness / Procedural bars under Rule 61	Flowers contends miscarriage-of-justice exception applies so second motion may be considered	State: motion filed >3 years after finality and is repetitive; barred by Rule 61(i)(1) and (i)(2)	Motion was untimely and repetitive; exception under Rule 61(i)(5) not properly invoked; procedural bars control — reversed
Ineffective assistance — failure to object to § 3507 foundational question	Flowers: counsel should have objected when State failed to ask witnesses whether prior statements were true; objection would have been meritorious and prejudicial	State: counsel reasonably declined to object; answer would have been to ask the question and admission likely would still occur; no Strickland deficiency or prejudice	Trial counsel’s performance was objectively reasonable; Flowers failed Strickland first and second prongs; no relief on Claim One
Confrontation Clause violation from admission without truthfulness inquiry	Flowers/Superior Court: admission without establishing the § 3507 two-part foundation denied Sixth Amendment confrontation right	State: witnesses testified and were subject to full cross-examination; no Sixth Amendment violation because cross-examination sufficed	No confrontation violation where counsel made strategic choice to cross-examine; failure to object did not equate to constitutional violation
Ineffective assistance of appellate counsel for not raising foundation/plain-error on direct appeal	Flowers: appellate counsel should have argued the omitted foundational question as plain error	State: appellate counsel cannot be ineffective for failing to raise a claim that trial counsel reasonably omitted; underlying trial claim failed	Appellate claim depends on merit of trial counsel claim; because trial counsel’s conduct was reasonable and no constitutional error, appellate claim fails

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (two-part test for ineffective assistance of counsel)
Ray v. State, 587 A.2d 439 (§ 3507 two-part foundation requirement)
Blake v. State, 3 A.3d 1077 (discussing § 3507 foundation and Sixth Amendment implications)
Woodlin v. State, 3 A.3d 1084 (§ 3507 foundational requirements summarized)
Hoskins v. State, 102 A.3d 724 (assessing prejudice and counsel’s strategic choices under Strickland)
Keys v. State, 337 A.2d 18 (early discussion of § 3507 direct-examination foundation)
Moore v. State, 655 A.2d 308 (interpretation of § 3507 consistency requirement)
Sahin v. State, 7 A.3d 450 (Rule 61 procedural context)