State v. Mayfield

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)
v. ) ID Nos. 1806010081, 1807016528,
) and 1807016545
KILI L. MAYFIELD, )
Defendant. )

Submitted: July 30, 2024
Decided: October 28, 2024

Upon Defendant Kili Mayfield’s Motion for Postconviction Relief,
DENIED.

Upon Postconviction Counsel’s Motion to Withdraw,
GRANTED.

ORDER

This 28th day of October, 2024, upon consideration of Defendant Kili

Mayfield’s Motion for Postconviction Relief (D.I. 1151), his supplements to that

motion (D.I. 116, 134, and 135), his postconviction attorney’s Motion to Withdraw

with its appendix (D.I. 126, 127), the affidavits of standby trial and appellate counsel

(D.I. 136, 140), the State’s response (D.I. 137), and the record in this case, it appears

to the Court that:

I. FACTUAL AND PROCEDURAL BACKGROUND

(1) The then-to-date factual and procedural background of Mr. Mayfield’s

1
To avoid confusion in this consolidated case, the Court will refer only to the docket entries
assigned under Case No. 1806010081.
case was set forth by our Supreme Court in its decision on direct appeal as follows:

In July 2018, Mr. Mayfield was arrested for a series of forcible
rapes of three different women in Wilmington. All of the charged
offenses were consolidated into a single indictment. The Public
Defender’s Office undertook Mr. Mayfield’s legal representation.
On December 18, 2018, Mr. Mayfield filed a motion to waive
counsel and proceed pro se. Both the State and the Public
Defender’s Office wrote letters to the court expressing concern with
Mayfield’s motion, citing the serious nature of the charges and the
severe penalties he was facing. Mr. Mayfield responded by writing
a letter to the court reasserting his desire to proceed pro se. On
February 4, 2019, a Superior Court judge specifically assigned to
the case held a hearing to address the motion. Mr. Mayfield
unequivocally informed the court that he wished to proceed pro se.
Following a thorough colloquy with Mr. Mayfield, the judge
determined that Mr. Mayfield was knowingly, intelligently, and
voluntarily waiving his right to be represented by counsel. His
motion to proceed pro se was granted and the attorney assigned to
Mr. Mayfield’s case by the Public Defender’s Office was appointed
standby counsel. The judge explained to Mr. Mayfield that standby
counsel would “not take any legal action” on his behalf, that counsel
was there as a resource to him and the court, but she would not
“independently act.” On February 13, 2019, Mr. Mayfield was
given a trial date of July 9, 2019.

In the months following the February 4, 2019 hearing,
Mr. Mayfield was very energetic in pre-trial activity. He filed
several motions, including a motion to dismiss all charges, two
motions to suppress evidence, an amended motion to suppress
evidence, a motion for production of discovery, a motion in response
to a protective order, and a motion in limine to exclude from
evidence statements made by one of the alleged victims. Status
conferences were held on April 5 and May 31, 2019. All of
Mr. Mayfield’s motions were denied. At a hearing on June 17, 2019,
Mr. Mayfield requested a bench trial and waived his right to a jury
trial.

On July 8, 2019, the day before Mr. Mayfield’s bench trial was
set to begin, the judge held a status conference. At this conference,
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and for the first time since waiving his right to counsel and electing
to proceed pro se, Mr. Mayfield orally requested that he be
represented by counsel at trial. He reported to the judge that he was
requesting counsel because he felt overwhelmed and was not
prepared to try the case. He informed the judge that his family had
contacted a private attorney who was willing to enter his
appearance. He also informed the judge that the private attorney
wanted a 60-day continuance. The judge asked standby counsel if
she could contact the private attorney and hear directly from him
where the efforts to retain his services stood. The judge recessed the
conference so that she could do so. When the conference resumed,
standby counsel reported that the private attorney’s office confirmed
that there had been a consultation with Mr. Mayfield’s girlfriend,
but no appearance would be entered until a retainer was paid. Later
in the conference, standby counsel related that the private attorney’s
office also indicated that he would need a continuance of 90 days,
not 60 days. Standby counsel was also able to reach Mr. Mayfield’s
girlfriend during the recess. The girlfriend stated that she had part
of the retainer. Standby counsel impressed upon the girlfriend that
the private attorney needed to request a continuance because trial
was scheduled for the next day. The girlfriend said that her plan was
to make payment of the retainer that day.

The judge then asked for the State’s position “on basically what
is now a motion to continue the trial for the entry of an appearance
of an attorney.” The State strongly opposed a continuance. The
State argued that its witnesses were “all lined up.” The prosecutor
argued that there “are sensitive victim issues in this case.” He
explained that the State had met with the alleged victims, “who are
extremely fragile individuals,” multiple times “over the past few
weeks intentionally at a stage closer to trial to minimize the amount
of mental anguish basically that they have to deal with in going
through this process.” Later in the conference, the prosecutor
mentioned that one of the alleged victims would not be appearing at
trial, which he said could be attributable, at least in part, to the time
it had taken to get the case to trial. He reported that she had been in
state custody a month or two ago, but upon her release had fled the
state and could not be located. He argued that a continuance would
be prejudicial to the State’s case.

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The judge then asked Mr. Mayfield when he had started his
attempt to obtain private counsel. Mr. Mayfield responded that it
had been about a month ago. When asked by the judge why he had
not communicated his change of mind then, Mr. Mayfield responded
that he and his family had talked about it several times, that he and
his family had decided it was best to seek an attorney, and the plan
was to pay the attorney to step in and take over the case.

After further discussion of the fact that Mr. Mayfield was
requesting counsel on the day before his trial date, the trial judge
stated that he would not continue the case, adding, “[i]f an attorney
comes here tomorrow ready to enter his or her appearance and asks
for a continuance on your behalf, then I will at least hear that at that
time. But I’m not going to do it on the speculation that that may
occur.”

The judge then asked the prosecutor how many expert witnesses
the State had. He responded that there were three, two of whom
were scheduled to testify on the first day of trial. Later in the
conference he reported that the two scheduled to testify on the first
day of trial were DNA experts. The judge then noted that
Mr. Mayfield’s motions made it clear that he had “scoured the
discovery materials[,]” and asked him whether his attempts to
prepare himself for trial had changed since he had started thinking
about counsel. Mr. Mayfield responded that they had, that he
thought counsel would be entering an appearance, and that he was
not prepared for trial the next day.

The judge then asked Mr. Mayfield what he would like to see
happen if the private attorney his family was trying to secure did not
enter an appearance the next morning before trial. Mr. Mayfield
responded that, in that event, he would like to be represented by the
Public Defender’s Office. The judge then asked the prosecutor and
standby counsel when they would be able to try the case if the trial
were continued. Standby counsel reported that she had a murder
trial in September and that there were “some issues that our in-house
people have brought up or brought to my attention [including expert
witness issues] that I think need to be addressed.” She believed that
she could not be ready to try the case until close to the end of the
year. The judge asked the prosecutor and standby counsel to provide
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a realistic, potential trial week, if the case were continued. A recess
was then taken.

Following the recess, the prosecutor explained that because of
other scheduled trials, the earliest he would be available to try the
case would be November or December (without taking into account
witness availability). He also reported that the State had seventeen
or eighteen witnesses. Standby counsel reported that her schedule
would allow her to try the case in the first or second week of
December.

Discussion then turned to the fact that Mr. Mayfield had recently
filed a witness list with the court. The judge noted that the parties
had allowed two weeks for trial when it was scheduled as a jury trial,
and asked standby counsel whether she could attend to having
subpoenas served upon Mr. Mayfield’s witnesses. She indicated
that she could.

After listening to final comments from the State and
Mr. Mayfield, the judge began his ruling by observing that:

At play here is the intersection of two very important rights,
first of all, the right to counsel in a case. And generally, the
courts will recognize that a right to counsel is paramount.
And sometimes those two rights, right to counsel and right to
proceed pro se, collide in certain ways.

The nature of the two rights generally will favor the right to
counsel, which, if denied, leaves the defendant without a
trained professional to guide his or her litigation. And the
importance of that right to counsel is reflected in the cautions
that are required when a defendant seeks to relinquish that
right to counsel. Those waivers must be made in unequivocal
language as we understand from Faretta and the cases
thereafter. It has to be a knowing, intelligent, and voluntary
decision.

The judge then proceeded to deny Mr. Mayfield’s request for
counsel. The reasons he gave can be summarized as follows: Since
undertaking self-representation, Mr. Mayfield had been vigorous in
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his own defense, “filing motion after motion, making it very clear
that he has read everything that, as I said, picking apart times, dates,
statements, inconsistencies, and concerns about the evidence he had.
At all points, he indicated a full wish to proceed pro se.” While the
judge had encouraged Mr. Mayfield to make use of standby counsel
in preparing for trial, it had been made clear when Mr. Mayfield’s
motion to proceed pro se was granted that all that would be expected
from standby counsel was that she be “prepared to take over . . .
logistics and only deal with . . . logistics,” at least in part because of
“the relationship, the breakdown of the relationship to a certain
extent” between Mr. Mayfield and standby counsel. “In the
meantime,” the State had prepared 17 or 18 witnesses for trial,
including three experts, two of whom were scheduled to testify on
the first day of trial. Mr. Mayfield had the expert reports and had
“written exhaustively about what he believes about the experts.”
The State had “already lost one of its complaining witnesses,” at
least in part, due to the passage of time. Mr. Mayfield had been
provided with Jencks material “well ahead of time so that he has the
allegations of the witnesses and their statements.” Mr. Mayfield’s
filings showed that he had “gone through all the discovery materials
and prepared himself.” He had prepared a defense witness list with
nine witnesses. He had not issued any “concern about proceeding
pro se until today.” Appointment of counsel for Mr. Mayfield
would necessitate a four or five month continuance. The court
concluded, “Mr. Mayfield’s request and the basis for his request are
not outweighed by the other prejudice that would be visited by a
continuance.”

Mr. Mayfield’s bench trial began as scheduled the next day and
resulted in the aforementioned convictions.2

(2) Mr. Mayfield was sentenced to a natural-life term in prison plus an

additional 127 years of unsuspended incarceration, various suspended terms of

2
Mayfield v. State, 256 A.3d 747, 749-52 (Del. 2021) (found in PCR Counsel’s App’x (D.I. 127
and D.I. 128) at A-848-867 [hereinafter A-***] (contents of those two comprehensive volumes)).

-6-
incarceration, and periods of probation.3

(3) Mr. Mayfield, then with the assistance of newly appointed counsel,4

filed and prosecuted a direct appeal to the Delaware Supreme Court.5

Notwithstanding those efforts, his convictions and sentence were affirmed on direct

appeal.6

II. MR. MAYFIELD’S MOTION FOR POSTCONVICTION RELIEF

(4) Mr. Mayfield filed his first timely postconviction motion pro se with

an accompanying application for counsel.7 The Court granted his request for counsel

and Benjamin S. Gifford, IV, Esquire, (hereinafter “Postconviction counsel” or

“PCR Counsel”) was appointed to represent Mr. Mayfield in this postconviction

proceeding.8

(5) The Court provided Postconviction counsel with the opportunity to

review the complete record in this matter and file an amended motion if, in his

3
D.I. 108 (A-671-687—Sentencing Transcript); D.I. 96 (A-688-696—Modified Sentencing
Order).
4
See, e.g., Not. of App., Mayfield v. State, No. 493, 2019 (Del. Jan. 8, 2020) (notice of appeal
filed by ODS counsel); A-706 (letter from ODS appellate counsel); Entry of App., Mayfield v.
State, No. 493, 2019 (Del. Mar. 10, 2020) (entry of appearance by ODS appellate counsel); A-707
(entry of appearance by substitute ODS appellate counsel).
5
A-708-759 (Direct Appeal Opening Brief); A-803-846 (Direct Appeal Reply Brief); A-811-
822 (Transcript of Direct Appeal Oral Argument); A-842-846 (Motion for Rehearing en Banc).
6
Mayfield v. State, 256 A.3d 747 (Del. 2021), reh’g denied, (July 27, 2021).
7
D.I. 115 (pro se motion for postconviction relief); D.I. 116 (motion for appointment of
postconviction counsel).
8
D.I. 119.

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professional judgment, amendment was appropriate.

(6) Postconviction counsel has now filed a Motion to Withdraw as

Counsel.9 In his motion, Postconviction counsel reports that—after careful review

of Mr. Mayfield’s case—he “cannot ethically advance any postconviction claims on

behalf of Mr. Mayfield”10; and further, that he did not discover any other potential

meritorious grounds for relief.11

(7) Under this Court’s Criminal Rule 61(e)(7):

If counsel considers the movant’s claim to be so lacking in merit
that counsel cannot ethically advocate it, and counsel is not
aware of any other substantial ground for relief available to the
movant, counsel may move to withdraw. The motion shall
explain the factual and legal basis for counsel’s opinion and shall
give notice that the movant may file a response to the motion
within 30 days of service of the motion upon the movant.12

(8) Postconviction counsel provided Mr. Mayfield with a copy of his

withdrawal motion and advised Mr. Mayfield of his ability under Rule 61(e)(7) to

file a response thereto.13 Mr. Mayfield responded to the motion to withdraw with

two supplementary filings.

(9) Mr. Mayfield’s standby and his appellate counsel have filed affidavits

9
PCR Counsel’s Mot. to Withdraw Mot. and Mem. (D.I. 126).
10
PCR Counsel’s Mot. to Withdraw Mem. 19.
11
Id. at 1.
12
Del. Super. Ct. Crim. R. 61(e)(7).
13
See PCR Counsel’s Mot. to Withdraw Mem. 18.

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addressing Mr. Mayfield’s postconviction claims alleging ineffective assistance of

counsel.14

(10) As just mentioned, in addition to his original pro se motion for

postconviction relief, Mr. Mayfield has docketed what he entitled an “amended

postconviction motion” and another supplement—both of the latter filings came

after his postconviction counsel’s motion to withdraw.15 The Court deems these

three filings collectively as the response permitted by Rule 61(e)(7).

(11) The State has filed its response opposing Mr. Mayfield’s postconviction

motion.16

III. RULE 61’s PROCEDURAL REQUIREMENTS

(12) To evaluate Mr. Mayfield’s postconviction claims, and to determine

whether assigned counsel’s motion to withdraw should be granted, the Court should

be satisfied that PCR Counsel conducted a truly conscientious examination of the

record and the law for claims that could arguably support Mr. Mayfield’s Rule 61

motion. The Court should also conduct its own review of the record to determine

whether Mr. Mayfield’s Rule 61 motion is devoid of any, at least, arguable

postconviction claims.17

14
D.I. 136 and D.I. 140.
15
D.I. 134 and 135.
16
D.I. 137.
17
State v. Lindsey, 2023 WL 2535895, at *5 (Del. Super. Ct. Mar. 16, 2023), aff’d, 2023 WL
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(13) Delaware courts must consider Criminal Rule 61’s procedural

requirements before addressing any substantive issues.18 The procedural bars in

Rule 61 are timeliness, repetitiveness, procedural default, and former adjudication.19

Of these, two are relevant here.

(14) Under Rule 61(i)(4): “Any ground for relief that was 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, is

thereafter barred.”20

(15) Rule 61(i)(3) bars any particular claim that could have been but was not

raised at trial or on direct appeal, unless the defendant can show cause for relief from

the procedural default and prejudice.21 Generally, Rule 61(i)(3) is inapplicable to

8232287 (Del. Nov. 27, 2023).
18
Maxion v. State, 686 A.2d 148, 150 (Del. 1996); State v. Jones, 2002 WL 31028584, at *2
(Del. Super. Ct. Sept. 10, 2002).
19
State v. Peters, 283 A.3d 668, 680 (Del. Super. Ct. Sept. 30, 2022), aff’d, 2023 WL 3880124
(Del. June 7, 2023). State v. Madison, 2022 WL 3011377, at *2 (Del. Super. Ct. July 29, 2022),
aff’d, 2022 WL 17982946 (Del. Dec. 29, 2022). These procedural requirements are considered on
a claim-by-claim basis. Id. And, if any one of these bars applies to a specific claim, then the inmate
must show entitlement to exception therefrom under Rule 61(i)(5). Id.; Super. Ct. Crim. R. 61(i)(5)
(providing that Rule 61’s procedural bars found (1)(1)-(4) in do not apply to a claim: that the
court lacked jurisdiction; that pleads with particularity new evidence of the defendant’s actual
innocence; or, that application of a new rule of constitutional law made retroactive on collateral
review is required.).
20
Super. Ct. Crim. R. 61(i)(4).
21
Super. Ct. Crim. R. 61(i)(3) (“Any ground for relief that was not asserted in the proceedings
leading to the judgment of conviction, as required by the rules of this court, is thereafter barred,
unless the movant shows . . . [c]ause for relief from the procedural default and . . . [p]rejudice from
violation of the movant’s rights.”).

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claims of ineffective assistance of counsel—which in the norm can’t be raised

against trial counsel on direct appeal22 and as a practicality aren’t yet ripe against

appeals counsel until the resolution of direct appeal. And so, the Court usually

considers those claims on their merits during postconviction proceedings.23

IV. MR. MAYFIELD’S POSTCONVICTION CLAIMS

(16) The Court has combed through Mr. Mayfield’s multiple filings.

Therein, Mr. Mayfield first pens three unadorned claims in his initial motion for

postconviction relief (and accompanying request for counsel).24 The Court

replicates them here:

(a) “Violation Sixth Amendment, to Counsel of Choice”;

(b) “Fifth Amendment right, to front my accuser”; and

(c) “Fourth Amendment right, failure to conduct pretrial
investigation”.25

In his supplements, Mr. Mayfield complains his direct appeal counsel was

ineffective for:

22
See State v. Smith, 2017 WL 2930930, at *1 (Del. Super. Ct. July 7, 2017); see also Guy v.
State, 82 A.3d 710, 715 (Del. 2013) (“In a jurisdiction like Delaware, where ineffective assistance
of trial counsel may not be raised on direct appeal, the first post-conviction proceeding is in many
ways the equivalent of a prisoner’s direct appeal as to the ineffective assistance claim.”) (cleaned
up).
23
State v. Martin, 2024 WL 3273429, at *2 (Del. Super. Ct. July 1, 2024).
24
See Pro Se Mot. for Postconviction Relief 3 (referring reader to the motion for appointment of
counsel for a listing of his grounds for Rule 61 relief).
25
Mot. for Appt. of Counsel 2 (D.I. 116).

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(d) Failing to argue that his constitutional right to a fair trial
was violated when the Court denied Mr. Mayfield’s
request to call the Justice of the Peace Court magistrate
who authorized his arrest warrant as a trial witness;26

(e) Failing to challenge the trial judge’s questioning of a
witness;27

(f) Failing to challenge the denial of Mr. Mayfield’s mid-trial
motion for judgment of acquittal for the counts related to
victim C.C.;28 and,

(g) Failing to challenge Mr. Mayfield’s waiver of a jury trial.29

(17) For the reasons explained now, Mr. Mayfield’s claims asserted through

his motion for postconviction relief (and his supplements) are DENIED.

A. CLAIMS IN THE INITIAL POSTCONVICTION MOTION

(18) Mr. Mayfield’s bullet-point claims in his opening pro se postconviction

filing do not warrant relief.

(19) First, during his direct appeal to the Delaware Supreme Court,

Mr. Mayfield was represented by counsel who argued a single claim—that

Mr. Mayfield’s Sixth Amendment right to assistance of counsel was violated when

this Court denied his last-minute request for reappointment of counsel and a

26
Supp. Mem. in Support of Mot. for Postconviction Relief 1-2 (D.I. 134).
27
Id. at 2-4.
28
Id. at 4-5.
29
Amended Mot. for Postconviction Relief 1-2 (D.I. 135).

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continuance of his trial for counsel’s reengagement.30

(20) “Justice does not require that an issue that has been previously

considered and rejected be revisited simply because the claim is refined or

restated.”31 On direct appeal, the Supreme Court addressed Mr. Mayfield’s Sixth

Amendment right-to-counsel claim in a manner that triggers Rule 61(i)(4)’s former

adjudication bar.

(21) When assessing a certain postconviction claim this Court might find its

underlying issues to have been fully addressed in an earlier adjudication of a related

claim in the case and “conclude that the interests of justice would not be served by

any further consideration of them.”32 “No doubt, a postconviction court is often

urged by a Rule 61 petitioner to address a claim close but not identical to one that

was substantively resolved—i.e., formerly adjudicated—on direct appeal.”33 Then,

“the relevant determination is whether the underlying issue of a claim has already

been decided.”34 And when it has, the latter postconviction claim is properly

deemed procedurally barred because “a defendant is not entitled to have a court re-

30
See A-708-759; A-803-846; A-811-822; Mayfield, 256 A.3d at 748.
31
Riley v. State, 585 A.2d 719, 721 (Del. 1990); State v. Madison, 2018 WL 1935966, at *4-5
(Del. Super. Ct. Apr. 11, 2018), aff’d, 2018 WL 6528488 (Del. Dec. 11, 2018).
32
Riley, 585 A.2d at 721.
33
State v. White, 278 A.3d 680, 686 (Del. Super. Ct. 2022), reh’g denied, 2022 WL 4091115
(Del. Super. Ct. Sept. 7, 2023), aff’d, 2023 WL 2173680 (Del. Feb. 22, 2023).
34
Madison, 2018 WL 1935966, at *4.

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examine an issue that has been previously resolved.”35

(22) Here, Mr. Mayfield’s Sixth Amendment right-to-counsel claim—which

included the notion that he should have been allowed to delay trial and re-engage his

appointed attorney or hire his counsel of choice—was substantively examined and

resolved on direct appeal. Thus, his current Sixth Amendment complaint is

procedurally barred under Rule 61(i)(4).

(23) Second, Mr. Mayfield’s claim that he was denied his constitutional right

to confront one of his victims when she did not testify as a witness36 was waived by

him at trial. Prior to trial, the State filed a motion in limine to admit the out-of-court

statements of R.S., the victim of a 2014 rape, who could no longer be located.37

(24) When one of the initial responding police officers who had heard R.S.’s

screams from an alleyway was examined at trial, Mr. Mayfield initially objected to

35
Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992). See Garvey v. State, 2009 WL 2882873,
at *1 (Del. Sept. 10, 2009) (finding a claim procedurally barred by Rule 61(i)(4) because the court
“disagree[d] with [movant]’s contention that his current claim [wa]s sufficiently distinguishable
from [a] previous claim to warrant consideration in this [postconviction] proceeding” as
postconviction movant “merely recast his previously-rejected claim as an attack on his
indictment.”).
36
Mr. Mayfield labels this supposed error as violative of a right guaranteed by the Fifth
Amendment. Mot. for Appt. of Counsel 2. But it is the Sixth Amendment of the United States
Constitution that requires that “[i]n all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him.” U.S. CONST. amend. VI. See also DEL. CONST.
art. I, § 7 (“In all criminal prosecutions, the accused hath a right to . . . meet the witnesses in their
examination face to face . . . ”).
37
A-215-226; A-405.

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a single statement by R.S. to the office that she had been raped.38 But, he then agreed

to that lone statement’s admissibility.39 From there, Mr. Mayfield elicited more of

R.S.’s statements to the police officer on cross-examination and agreed to the State’s

admission of the remainder on re-direct.40 Given this sequence of trial events,

Mr. Mayfield cannot now raise a Confrontation Clause claim that he himself waived

earlier.41

(25) Last, Mr. Mayfield suggests that his rights guaranteed by the Fourth

Amendment were violated by a “failure to conduct [a] pretrial investigation.”42

Given his many complaints regarding the police investigation and his appointed

counsel’s performance before he took on his own representation, it is simply not

clear which Mr. Mayfield is now contesting. No matter. “Under settled Delaware

case law, this Court will not consider claims of this type if they are conclusory or

unsubstantiated.”43 Here, Mr. Mayfield has—even after filing two separate

supplements to his postconviction motion—done nothing to clarify or substantiate

this threadbare allegation. It, in turn, warrants no further review.44

38
A-532-538.
39
A-538-539.
40
A-538-541.
41
See generally Super. Ct. Crim. R. 61(i)(3).
42
Mot. for Appt. of Counsel 2.
43
State v. Joyner, 2006 WL 2270937, at *2 (Del. Super. Ct. Aug. 7, 2006).
44
Id. See Super. Ct. Crim. R. 61(d)(4). This procedural provision, too, may be applied on a
claim-by-claim basis. See State v. Cooper, 2001 WL 1729147, at *2 (applying Rule 61’s summary
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B. INEFFECTIVE ASSISTANCE CLAIMS AGAINST APPELLATE COUNSEL

(26) A claim of ineffective assistance of appellate counsel is reviewed under

the familiar two-part Strickland test.45 One claiming ineffective assistance of

counsel must demonstrate that: (a) his defense counsel’s representation fell below

an objective standard of reasonableness, and (b) there is a reasonable probability that

but for counsel’s errors, the result of the proceeding would have been different.46

When claiming ineffective assistance of appellate counsel, one “must show a

reasonable probability that, but for his counsel’s unreasonable failure to [press a

particular claim], he would have prevailed on his appeal.”47

(27) Now, “[t]he likelihood of [that] different result must be substantial, not

just conceivable.”48 And while the “objective inquiry is not mathematically precise,”

there can only be a finding of the required prejudice “when there is a substantial

dismissal provision to two of the movant’s claimed errors—one a direct claim, one an
ineffectiveness claim—where each was stated in a conclusory manner and offered no specifics to
support his mere assertions); id. (“Claims for postconviction relief, which are entirely conclusory
may be summarily dismissed on that basis.”).
45
Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Neal v. State, 80 A.3d 935, 946 (Del.
2013).
46
Strickland, 466 U.S. at 694; see also Alston v. State, 2015 WL 5297709, at *2-3 (Del. Sept. 4,
2015).
47
Neal, 80 A.3d at 947 (quoting Smith v. Robbins, 528 U.S. 259, 285 (2000)).
48
Starling v. State, 130 A.3d 316, 325 (Del. 2015) (quoting Harrington v. Richter, 562 U.S. 86,
112 (2011)); see Strickland, 466 U.S. at 693 (“It is not enough for the [postconviction movant] to
show that the errors had some conceivable effect on the outcome of the proceeding. Virtually
every act or omission of counsel would meet that test, and not every error that conceivably could
have influenced the outcome undermines the reliability of the result of the proceeding.” (citation
omitted)).

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likelihood—i.e., a meaningful chance—that a different outcome would have

occurred but for counsel’s deficient performance.”49

(28) So, at some point for a movant to be successful under Strickland, the

Court “must consider the totality of the evidence, and must ask if the movant has

met the burden of showing that the decision reached would reasonably likely have

been different absent the errors” he alleges counsel made.50 This measure of

prejudice is the same whether the ineffectiveness charge is aimed at trial or direct

appeal counsel.51 A movant must prove both deficient attorney performance and

resulting prejudice to succeed in making an ineffective assistance of counsel claim.

Failure in the first instance to prove either will doom his claim, and the Court need

not address the other.52 Put another way, “if the Court finds that there is no

possibility of prejudice even if a defendant’s allegations regarding counsel’s

representation were true, the Court may dispose of the claim on this basis alone.”53

49
Baynum v. State, 211 A.3d 1075, 1084 (Del. 2019) (citing Harrington, 562 U.S. at 112).
50
Dale v. State, 2017 WL 443705, at *2 (Del. Jan. 31, 2017) (cleaned up).
51
See Neal, 80 A.3d at 946 (“When evaluating an appellate counsel’s conduct for ineffective
assistance, we apply the same Strickland framework.”); Ploof v. State, 75 A.3d 811, 831 (Del.
2013) (“Although the United States Supreme Court developed the Strickland test to evaluate trial
counsel, we also apply the Strickland test to evaluate appellate counsel’s performance.”).
52
Strickland, 466 U.S. at 697; Ploof, 75 A.3d at 825 (“Strickland is a two-pronged test, and there
is no need to examine whether an attorney performed deficiently if the deficiency did not prejudice
the defendant” (citation omitted)); State v. Hamby, 2005 WL 914462, at *2 (Del. Super. Ct. Mar.
14, 2005).
53
State v. Manley, 2014 WL 2621317, at *7 (Del. Super. Ct. May 29, 2014); Green v. State, 238
A.3d 160, 174-75 (Del. 2020) (“We may dispose of an ineffective-assistance claim based on the
absence of sufficient prejudice without addressing the performance prong if, in fact prejudice
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(29) To determine whether Mr. Mayfield has been prejudiced because his

attorney failed to raise any specific issue on appeal, the Court begins—and as set

forth below can end—its Strickland examination by considering each issue’s

merits.54

1. Mr. Mayfield’s claim that his constitutional right to a fair trial was
violated when the Court denied his request to call, as a trial witness,
the Justice of the Peace Court magistrate who authorized his arrest
warrant would not have gained him reversal of his convictions.

(30) Mr. Mayfield says his appellate counsel was ineffective for not

challenging this Court’s denial of his demand to call the Justice of the Peace Court

magistrate who authorized his arrest warrant. Mr. Mayfield sought to subpoena and

have the magistrate testify about extant and missing averments in his arrest

warrant.55 Mr. Mayfield seemed to believe that the magistrate may not have signed

that arrest warrant had certain information been included.56 The Court deemed that

testimony irrelevant.57

(31) There is no possibility that challenging this evidentiary ruling could

have resulted in reversal of Mr. Mayfield’s convictions. The Delaware Supreme

is lacking.”); Strickland, 466 U.S. at 691 (“an error by counsel, even if professionally
unreasonable, does not warrant setting aside the criminal judgment if the error had no effect”).
54
Ploof, 75 A.3d at 832-33.
55
A-519-521; A-621-622.
56
A-519-521; A-621-622.
57
A-621-622.

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Court reviews this Court’s rulings on the admissibility of evidence for abuse of

discretion.58 “An abuse of discretion occurs when a court has exceeded the bounds

of reason in light of the circumstances, or so ignored recognized rules of law or

practice so as to produce injustice.”59 At the point he wished to raise the issue—trial

of the substantive charges after indictment—any irregularity in a Justice of Peace

arrest warrant was irrelevant.60 There seems no chance our Supreme Court would

have found this Court’s relevance ruling to be an abuse of discretion. And as

Mr. Mayfield has never articulated any evidence that derived from execution of the

alleged deficient arrest warrant or other prejudice he suffered therefrom, there’s no

possibility of prejudice from a ruling disallowing the testimony he wished to attack

or from counsel’s failure to argue about it on appeal.61

2. Failure to challenge the trial judge’s questioning of a witness.

(32) Here, Mr. Mayfield suggests that appellate counsel should have

challenged the trial judge’s questioning of a State’s witness. In his view, the Court’s

58
McNair v. State, 990 A.2d 398, 401 (Del. 2010) (citing Baumann v. State, 891 A.2d 146, 148
(Del. 2005)).
59
Id. (citing Lilly v. State, 649 A.2d 1055, 1059 (Del. 1994)).
60
See State v. Eley, 2002 WL 337996, at *5 (Del Super. Ct. Feb. 19, 2002) (finding defendant
could not establish Strickland-level prejudice on a similar claim of failure to attack an alleged
faulty arrest warrant claim, because once “[t]he Grand Jury found there was probable cause for the
charges . . . [a]ny deficiency in the arrest warrant, even assuming there was one, was cured by the
indictment.”).
61
See State v. Spencer, 2023 WL 3052370, at *6 (Del. Super. Ct. Apr. 24, 2023) (explaining that
a court will not provide redress for an alleged Fourth Amendment violation that resulted in no
actual discovery of evidence).

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questioning hindered his cross-examination of the witness.62 And so, Mr. Mayfield

says, his appellate counsel should have raised this issue on appeal.

(33) Delaware Rule of Evidence 614(b) allows a trial judge to “examine a

witness regardless of who calls the witness.”63 And, “there is no general bar

preventing trial judges from questioning witnesses, sua sponte.”64 That happened

in this instance when the Court needed to clarify for itself a point that had become

muddled during Mr. Mayfield’s cross-examination of the chief investigating

officer.65 Mr. Mayfield did not object to the Court’s questions at the time, nor did

he follow-up with any additional cross-examination when invited to do so.66 So, had

this issue been raised on direct appeal, the Supreme Court would have reviewed the

Court’s questioning for plain error.67 Plain error is a narrower and exacting standard

of review:

the error complained of must be so clearly prejudicial to
substantial rights as to jeopardize the fairness and
integrity of the trial process. . . . Furthermore, the
doctrine of plain error is limited to material defects
which are apparent on the face of the record; which are
basic, serious and fundamental in their character, and
which clearly deprive an accused of a substantial right,

62
Supp. Mem. in Support of Mot. for Postconviction Relief 2-3.
63
D.R.E. 614(b).
64
Lawrence v. State, 2007 WL 1329002, at *2 (Del. May 8, 2007).
65
A-514-519.
66
A-518-519.
67
Lawrence, 2007 WL 1329002, at *2.

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or which clearly shows manifest injustice.68

(34) When a witness doesn’t seem to understand questions asked by a party

or there is other confusion, a trial judge may “explain to [her] the nature of the

answer or information called for” or endeavor to seek clarification for himself as

factfinder in a bench trial.69 Indeed, Rule 614 was adopted, in part, for just such

purpose.70 There is no substantial likelihood that our Supreme Court would have

found the Court’s minimal questioning here to have constituted plain and reversible

error.71

3. Failure to challenge the Court’s denial of Mr. Mayfield’s mid-trial
motion for judgment of acquittal on direct appeal.

(35) After the State had rested, Mr. Mayfield moved for judgment of

acquittal arguing that there was contradictory evidence in the State’s case and the

Court should therefore “dismiss all charges” against him.72 Now, Mr. Mayfield

charges that his appellate counsel should have challenged the Court’s denial of the

68
Trump v. State, 753 A.2d 963, 971 (Del. 2000), holding modified by Baker v. State, 906 A.2d
139 (Del. 2006) (quoting Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986), cert. denied, 479
U.S. 869 (1986)).
69
Lawrence, 2007 WL 1329002, at *2 (quoting State v. Garcia, 673 P.2d 955 960 (Ariz. Ct. App.
1983)); id. at *3 (“Attempts by a judge to facilitate a witness’ understanding of a question are not
improper.” (quoting State v. Robertson, 760 A.2d 82, 104 (Conn. 2000))).
70
D.R.E. 614 cmt. (“The Committee recognized that this rule may be helpful in nonjury trials,
especially if a party is appearing pro se.”).
71
Lawrence, 2007 WL 1329002, at *3 (holding that because the trial judge’s questions and
remarks did not prejudicially affect any of the appellant’s substantial rights, the judge “committed
no error, let alone plain error”).
72
A-629-630.

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motion for judgment of acquittal on the charges from the 2017 episode. According

to Mr. Mayfield, he was and is due acquittal on those charges because the victim,

C.C., “gave clear and exonerating statements concerning her attacker during her

interview” with the police that she later contradicted at trial.73 To him, with these

inconsistencies, the State did not prove his identity as C.C.’s rapist beyond a

reasonable doubt and failure to raise that claim on appeal was ineffective.74

(36) On appeal, the Delaware Supreme Court “review[s] the Superior

Court’s denial of a motion for judgment of acquittal de novo to determine whether a

rational trier of fact, viewing the evidence in the light most favorable to the State,

could have found the essential elements, beyond a reasonable doubt.”75 But as our

Supreme Court has explained, it is only “in the rare case where there is irreconcilable

conflict in the State’s evidence concerning the defendant’s guilt, such as would

preclude a conviction beyond a reasonable doubt, [that] the trial court must . . . grant

a motion for judgment of acquittal.”76 This is not one of those rare cases,77 and—

73
Supp. Mem. in Support of Mot. for Postconviction Relief 3-4.
74
Id. at 4.
75
Howell v. State, 268 A.3d 754, 775 (Del. 2011) (citing Cushner v. State, 214 A.3d 443, 446
(Del. 2019)).
76
Washington v. State, 4 A.3d 375, 378 (Del. 2010).
77
See id. at 379 (explaining the factors of the “rare case” in which “all of the requirements for an
irreconcilable conflict [will] be found” that would mandate grant of a motion for judgment of
acquittal).

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with the other scientific evidence identifying Mr. Mayfield as C.C.’s attacker78—

there is no substantial likelihood that our Supreme Court would reverse this Court’s

denial of the motion for judgment of acquittal on the 2017 charges.

4. Failure to challenge Mr. Mayfield’s waiver of a jury trial.

(37) Mr. Mayfield argues now that his appellate counsel should have

challenged his jury-trial waiver.79 He insists that the Court “erroneously induced

[him] to accept a bench trial over a jury trial.”80 And in his view, had his appellate

counsel raised this issue, it would have gained reversal of his convictions.

(38) Both the United States and Delaware Constitutions provide a criminal

defendant the right to a jury trial.81 Indeed, “[t]rial by jury has been established by

the Constitution as the ‘normal and . . . preferable mode of disposing of issues of

fact in criminal cases.’”82 But, it is a right that the defendant may—when he

determines it in his better interest—waive.83 Whether to accept or deny a criminal

defendant’s jury trial waiver is within the trial judge’s discretion.84 On appeal, a

78
See A-632 (outlining the scientific and testimonial evidence when denying motion for
judgment of acquittal on charges from attack of C.C.).
79
Supp. Mem. in Support of Mot. for Postconviction Relief 3-4.
80
Amended Mot. for Postconviction Relief 1.
81
U.S. CONST. amend. VI; DEL. CONST. art. I, § 7.
82
Singer v. United States, 380 U.S. 24, 35 (1965) (quoting Patton v. United States, 281 U.S. 276,
312 (1930)).
83
Adams v. United States ex rel. McCann, 317 U.S. 269, 278 (1942); Davis v. State, 809 A.2d
565, 568 (Del. 2002).
84
Deshields v. State, 706 A.2d 502, 509 (Del. 1998); Polk v. State, 567 A.2d 1290, 1295 (Del.
-23-
defendant bears the burden of proving that he did not exercise a valid waiver of

his right to trial by jury.85 And, this Court’s decision to accept such waiver is

reviewed by this Court for an abuse of discretion. 86

(39) It is Mr. Mayfield who first mentioned waiver of a jury trial in a pretrial

conference.87 He notified the Court that he would make up his mind about his waiver

in one to two weeks.88 The Court suggested that when making his jury-waiver

decision, Mr. Mayfield might want to consult with standby counsel.89

(40) At the next status conference, Mr. Mayfield made it clear that he had

decided that he wanted to waive trial by jury; the State consented.90 The Court then

carefully and thoroughly conducted the required colloquy with Mr. Mayfield and

accepted his written waiver of the right to a jury trial.91 It was only after this

exchange that the Court found that Mr. Mayfield knowingly and voluntarily waived

his right to trial by jury.92

1989).
85
Davis, 809 A.2d at 570 (citing Adams, 317 U.S. at 281).
86
Id. at 572 (citing Deshields, 706 A.2d at 509).
87
A-299-300.
88
A-300-301.
89
A-319-321.
90
A-388.
91
A-388-391; see Davis, 809 A.2d at 570-72 (explaining the reasons for and best practices
expected of Delaware trial judges in accepting a jury-trial waiver).
92
A-391.

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(41) Mr. Mayfield’s suggestion of inappropriate inducement of this waiver

is belied by the record. And with the specific claim made by Mr. Mayfield, any

misunderstandings that he may have had were adequately cured by the Court’s

extensive waiver colloquy.93 Given all that, there is no substantial likelihood that

our Supreme Court would have found the Court to have abused its discretion in the

acceptance of Mr. Mayfield’s waiver of a jury trial—the record establishes that

Mr. Mayfield was motivated to waive his right to a trial by jury for reasons of his

own.94

(42) To reiterate, given the ineffectiveness claims he has brought,

Mr. Mayfield was tasked with proving “there is a substantial likelihood—i.e., a

meaningful chance—that a different outcome would have occurred but for counsel’s

deficient performance” on his direct appeal.95 Mr. Mayfield has failed on each

allegation made.96

93
See generally State v. Caulk, 2021 WL 26622250, at *7-8 (Del. Super. Ct. June 29, 2021);
State v. Hall, 2016 WL 241192, at *3 (Del. Super. Ct. Jan. 19, 2016).
94
See, e.g., Wheeler v. State, 296 A.3d 363, 375-77 (Del. 2023) (demonstrating that in such case,
a defendant’s claim of an invalid jury-trial waiver will neither warrant reversal on direct appeal
nor meet the required Strickland prejudice standard).
95
Baynum, 211 A.3d at 1084 (citing Harrington, 562 U.S. at 112).
96
While Mr. Mayfield’s failure to carry his burden on the Strickland prejudice showing alone
dooms his claim, he would gain no more traction in trying to prove deficient performance by his
appellate attorney. The mere fact that a defendant is unsuccessful on direct appeal does little in
demonstrating his appellate counsel was ineffective. Appellate counsel need not raise every
nonfrivolous issue. Ploof, 75 A.3d at 831 (citing Jones v. Barnes, 463 U.S. 745, 754
(1983)). Rather, a postconviction movant “can only show that his appellate counsel ineffectively
represented him where the attorney omits issues that are clearly stronger than those the attorney
-25-
V. CONCLUSION

(43) Having reviewed the record carefully, the Court has concluded that

Mr. Mayfield’s claims are without merit and no other substantial grounds for

Rule 61 relief exist.97

(44) Accordingly, Mr. Mayfield’s Motion for Postconviction Relief is

DENIED and Mr. Gifford’s Motion to Withdraw is GRANTED.

SO ORDERED this 28th day of October, 2024.

/s/ Paul R. Wallace
____________________________
Paul R. Wallace, Judge
Original to Prothonotary

cc: Mr. Kili L. Mayfield, pro se
Benjamin S. Gifford, Esquire
Eric H. Zubrow, Deputy Attorney General
Jillian L. Schroeder, Deputy Attorney General
Cathy A. Johnson, Esquire
Santino Ceccotti, Esquire
Stephanie J. Volturo, Esquire, Office of Conflicts Counsel (ODS)

presented.” Id. at 832. Mr. Mayfield has made no such showing.
97
Del. Super. Ct. Crim. R. 61(e)(7); Lindsey, 2023 WL 2535895, at *5.

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