State v. Brisco

1

STATE OF DELAWARE, v. JOHN BRISCO, Defendant.

I.D. No. 1502007987

Superior Court of Delaware

April 9, 2024

Submitted: February 21, 2024

On Defendant's Motion for Post Conviction Relief - Denied.

Brian Arban, Deputy Attorney General, Delaware Department of Justice, Counsel to the State of Delaware.

Megan Davies, Esquire, Law Offices of Megan J. Davies, Counsel to John Brisco.

ORDER AND OPINION

FRANCIS J. JONES, JR., JUDGE

INTRODUCTION

On February 16, 2015, a New Castle County grand jury returned an indictment against Defendant John Brisco ("Brisco" or "Defendant") and several codefendants charging among other offenses, gang participation, three counts of first-degree murder, and related firearm charges for the homicides of Ioannis Kostikidis, Devon Lindsey, and William Rollins.^[1] The case was reindicted on November 9 2015.^[2]Brisco was a juvenile at the time of the crimes.^[3] A reverse amenability hearing took place and as a result of that proceeding Defendant was waived to Superior Court where he stood trial for: (1) Gang Participation occurring from January 2013 to September 2015; (2) the February 6, 2013 death of Kostikidis and related counts; (3) the January 18, 2015 death of Lindsey and related counts; (4) the January 24, 2015 death of Rollins and related counts; and (5) charges related to weapons and ammunition recovered from a search of Brisco's bedroom.^[4]

Brisco was acquitted of: (1) the First-Degree Murder of Lindsey and all related counts, (2) First Degree Murder of Ioannis Kostikidis under the intentional murder theory as well as Possession of a Firearm during the Commission of an Intentional Murder.^[5] He was convicted of first-degree felony murder of Kostikidis, first-degree murder of Rollins, possession of a firearm during the commission of a felony, and all other counts.^[6]

On July 21, 2017, Brisco was sentenced to an aggregate of two life sentences plus 35 years of incarceration followed by community supervision.^[7] Brisco appealed the Court's decision to the Delaware Supreme Court, raising the issue that a probation officer gave impermissible expert testimony about the range of accuracy of the GPS ankle monitor worn by Brisco at the time of the Kostikidis homicide.^[8]On May 10, 2018, the Delaware Supreme Court affirmed Brisco's convictions.^[9] The Court found that it need not reach the issue raised by Brisco because Brisco did not challenge the general accuracy of the evidence and that any error was harmless because there was overwhelming evidence placing him in the vicinity of the homicide.^[10] At the time of Brisco's conviction, he was represented by his then counsel, Michael Heyden, Esquire.^[11]

On November 7, 2018, Brisco filed a pro se motion for post-conviction relief pursuant to Rule 61 of the Delaware Rules of Criminal Procedure and a motion for the appointment of counsel. Counsel was appointed for Brisco. An amended Rule 61 motion was filed on July 17, 2023. On November 30, 2023, Brisco's former counsel, Michael Heyden, Esquire, filed Trial Counsel's Answer to Motion for Post Conviction Relief Pursuant to Rule 61.^[12] On February 21, 2024, the State filed its response in opposition to Brisco's amended postconviction motion.^[13] The matter is now ripe for decision.

FACTUAL BACKGROUND

On the evening of February 6, 2013, Ioannis Kostikidis was shot and killed standing outside his car in a parking lot in Wilmington, Delaware.^[14] He suffered one gunshot wound to his upper body.^[15] A single 9 mm shell casing was found near his body at the crime scene.^[16] A witness saw two men running from the crime scene.^[17]

One witness, Kina Madric, said that two (2) young men came to her house, which was on the same block, prior to the murder.^[18] She identified John Brisco as one of those men.^[19] She also said that he went by the name "John"; however, she admitted that she didn't see him with a gun, nor did she see him commit a robbery or commit a shooting.^[20]

Another witness said he was with Brisco and Wisher the day of the shooting. He said he went into a house, leaving the other two men outside.^[21] Shortly thereafter, he heard a shot.^[22] Later that night, the witness telephoned Brisco who told him that he and Wisher tried to rob someone, but the victim resisted and Brisco shot him.^[23]This witness also told the police that Brisco and Wisher were armed with guns that night.^[24]

On January 24, 2015, at 8:03pm, William Rollins was shot in the area of 21^stand Washington street.^[25] He suffered multiple gunshot wounds to his head and upper body.^[26] The medical examiner collected a bullet from Rollins's head. It was a .357 caliber.^[27] They also found 9 mm shell casings at the crime scene.^[28] The shell casings matched a gun that was found on co-defendant McCoy when he was arrested.^[29] Prior to Brisco's arrest, McCoy attempted to send Brisco a letter instructing Brisco to get rid of the gun that was in McCoy's house.^[30] The letter was intercepted by the prison authorities.^[31] The police searched McCoy's house and found the gun. That gun was connected to the murder.^[32]

Karel Blalock ("Blalock") testified that he had known Brisco for between seven and eight years.^[33] Blalock testified that he knew that Brisco sold heroin and he was known to carry a gun.^[34] Brisco told Blalock that Rollins was on the phone, and when Rollins turned away, Brisco shot him 11-12 times in the back on 21^stStreet.^[35] McCoy then walked over to Rollins and shot him in the back of the head with a .357.^[36] Brisco told Blalock that he used a P90 Ruger.^[37] Brisco told Blalock that Rollins had a "check on his head" because he had killed a person named "Beano."^[38] Brisco told Blalock that he was paid $13,000 for killing Rollins.^[39]

STANDARD OF REVIEW

A. Postconviction Relief Procedural Filters

Before addressing the merits of any postconviction claim, the Court must first determine whether the claims pass through the procedural filters of Rule 61.^[40] This Court will not address the substantive aspects of Brisco's claims if the claims are procedurally barred.^[41] Rule 61 imposes four procedural requirements on Brisco's motion: (1) the motion must be filed within one year of a final order of conviction; (2) any basis for relief must have been previously asserted in any prior postconviction proceedings; (3) any basis for relief must have been asserted at trial or on direct appeal as required by court rules; and (4) any basis for relief must not have been formerly adjudicated in any proceeding. Under Rule 61(i)(5), a defendant may avoid the first three procedural imperatives if the claim is jurisdictional or is a "colorable claim that there was a miscarriage of justice because of a constitutional violation."^[42] Further, challenges based on ineffective assistance of counsel may only be raised during a defendant's first Rule 61 proceeding.^[43]

The Court is satisfied Brisco's Motion is timely and procedurally proper except as indicated below.

B. Ineffective Assistance of Counsel

Ineffective assistance of counsel claims are governed by the two-prong test set forth in Strickland v. Washington.^[44] The Strickland test requires the defendant to prove "counsel's representation fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."^[45] Evaluating counsel's conduct begins with a "strong presumption" the representation was reasonable.^[46] This presumption is meant to avoid the "distorting effects of hindsight."^[47] In order to successfully allege ineffective assistance of counsel, a petitioner must show that counsel's performance both: 1) fell below "an objective standard of reasonableness"^[48] and 2) resulted in prejudice.^[49] Under the performance prong, the Delaware Supreme Court has held that "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."^[50] As such, trial counsel's "actions are afforded a strong presumption of reasonableness and that reviewing court must "reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from the counsel's perspective at the time."^[51]

ANALYSIS

Defendant asserts seven (7) reasons in support of his claim for post-conviction relief. The Court will address each in turn.

1. Counsel was Ineffective in Failing to Understand and Investigate GPS Location Evidence. This Failure Resulted in Counsel Misadvising his Client on the Likelihood of Success at Trial and Advancing a Deeply Flawed Alibi Defense to the Jury.

In his first claim, Brisco alleges that trial counsel's performance was ineffective and prejudiced him at both the plea and the trial stages of his proceedings.^[52] Specifically Brisco asserts that, in reference to a GPS tracking device installed on his body at the time of the Ioannis Kostikidis homicide, trial counsel incorrectly interpreted the report of the device's location data regarding Brisco's location.^[53] Brisco further argues that counsel's deficient performance prejudiced him at both the plea and trial stages of his proceedings.^[54]

At the plea stage, Brisco notes that the State had offered him a plea bargain in which it would have capped its sentence recommendation of Level V imprisonment at 45 years.^[55] Brisco claims that "there is a reasonable probability [he] would have accepted the plea, the plea would have been presented to the Court, and the Court would have sentenced [him] less severely than he was sentenced post-trial."^[56] Brisco posits that he was prejudiced at the trial stage because of "[i]nstead of focusing on the [] many weaknesses in the State...