         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 MICAH O. CUFFEE,                        §
                                         §
       Defendant Below,                  §   No. 19, 2018
       Appellant,                        §
                                         §   Court Below: Superior Court
       v.                                §   of the State of Delaware
                                         §
 STATE OF DELAWARE,                      §   Cr. ID No. 1209013919 (K)
                                         §
       Plaintiff Below,                  §
       Appellee.                         §

                             Submitted: March 15, 2019
                             Decided:   May 6, 2019

Before VALIHURA, SEITZ, and TRAYNOR, Justices.

                                       ORDER

      Upon consideration of the briefs of the parties and the record in this case, it

appears to the Court that:

      (1)    The defendant below-appellant, Micah O. Cuffee, has appealed the

Superior Court’s denial of his first motion for postconviction relief under Superior

Court Criminal Rule 61. After careful consideration of the parties’ briefs and the

record, we affirm the Superior Court’s judgment.

      (2)    On August 7, 2013, a Superior Court jury found Cuffee guilty of

Attempted Theft, Conspiracy in the Second Degree, and Criminal Mischief. After

granting the State’s petition to declare Cuffee a habitual offender, the Superior Court

sentenced Cuffee to eight years of Level V incarceration for Attempted Theft, two
years of Level V incarceration, suspended for one year of Level III probation, for

Conspiracy in the Second Degree, and a fine of $250 for Criminal Mischief.

         (3)     This Court affirmed Cuffee’s convictions on direct appeal.1 The Court

described the events leading to Cuffee’s convictions as follows:

         On the night of September 19, 2012, a resident of a development located
         near Walker Road in Dover heard a vehicle, a screeching, metallic noise
         like something was being dragged, and voices outside the back of her
         townhouse. Office buildings, which were closed for the day, were
         located behind the caller’s townhouse. The resident called 911 to report
         the noises at approximately 10:30 p.m. Corporal Gregory Hopkins and
         other members of the Dover police responded to the 911 call.

         Initially, Hopkins and the other police officers checked businesses and
         communities along Walker Road for the source of the reported noises.
         Hopkins checked 1155 Walker Road and did not see anything there.
         Hopkins then went to the 911 caller’s townhouse and spoke to her about
         what she had heard in order to pinpoint the location of the noises. Based
         on that conversation, Hopkins drove back to 1155 Walker Road, which
         was located behind the townhouse.

         Hopkins walked around the building located at 1155 Walker Road and
         saw four, disconnected air conditioning units behind the building and
         near a shed. The air conditioners had been cut from the building located
         at 1155 Walker Road. Hopkins reported his findings and it was decided
         that he would stay in the area to conduct surveillance in case someone
         returned to pick up the disconnected air conditioners. Other officers set
         up a perimeter near Walker Road.

         Shortly after Hopkins concealed himself under some trees to monitor the
         area where the air conditioners were located, he observed a maroon
         minivan, with no headlights on, driving in from Walker Road. After
         driving into the parking lot that was closest to the disconnected air


1
    Cuffee v. State, 2014 WL 5254614, at *3-8 (Del. Oct. 14, 2014).
                                                 2
          conditioners, the minivan began backing up over a bed of rocks near the
          air conditioners and became stuck.

          Hopkins watched the minivan occupants attempt to remove the minivan
          from the rocks. They were unsuccessful and called somebody for
          assistance. Although Hopkins could see the occupants of the minivan
          walk around it, he could not see them at all times. Hopkins observed a
          white pick-up truck drive in from Walker Road and tow the minivan off
          of the rocks. Cuffee’s cousin, Walter Cuffee, testified that Cuffee called
          him the night of September 19, 2012 for assistance. Walter Cuffee drove
          his white pick-up truck to Walker Road, where he testified that he picked
          up Cuffee and Mark McDonald, and then helped Cuffee and McDonald
          tow the minivan from the rocks. After Hopkins watched the white pick-
          up truck and maroon minivan leave the parking lot, he saw that the
          disconnected air conditioners were no longer where he had previously
          seen them. Hopkins radioed police units on Walker Road to report that
          the air conditioners had been taken and that both the white pick-up truck
          and maroon minivan should be stopped. Hopkins then walked around
          the area and saw that the air conditioners had been moved to the other
          side of the shed.

          Police stopped the white pick-up truck and maroon minivan. Cuffee was
          driving the minivan and McDonald was the passenger. Both men were
          arrested. In a search of the minivan, the police found a pair of bolt
          cutters, Channellock pliers, a flashlight, and two pairs of work gloves.
          All of the seats, except for the driver seat and front passenger seat, had
          been removed from the minivan. Cuffee’s daughter testified that she
          owned the minivan and that the equipment in the minivan belonged to
          her husband.2

          (4)      On August 11, 2015, Cuffee filed a timely motion for postconviction

relief. The motion was assigned to a Superior Court Commissioner. On October

28, 2015, Cuffee filed a motion to compel in which he sought to listen again to a CD



2
    Id. at *1-2.
                                             3
of the 911 calls and police officers’ radio communications from the night of his

arrest. The State opposed the motion, arguing that Cuffee had already listened to the

recordings during his direct appeal and had not established a basis to listen to the

recordings again. The Commissioner denied Cuffee’s motion.

       (5)    After Cuffee supplemented and amended his motion for postconviction

relief, his former counsel filed affidavits in response, and the State responded to the

motion, the Commissioner issued a report and recommendation on August 7, 2017.

The Commissioner found that Cuffee failed to overcome the Rule 61 procedural bars

and recommended denial of his motion for postconviction relief. Cuffee objected to

the Commissioner’s report and recommendation. On November 13, 2017, after de

novo review of the record, the Superior Court accepted the Commissioner’s report

and recommendation and denied the motion for postconviction relief.3 This appeal

followed.

       (6)    We review the Superior Court’s denial of postconviction relief for

abuse of discretion, although we review questions of law de novo.4 Both the

Superior Court and this Court on appeal first must consider the procedural

requirements of Rule 61 before considering the merits of any underlying

postconviction claims.5 The procedural bars of Rule 61 do not bar a timely claim of


3
  State v. Cuffee, 2017 WL 5606703 (Del. Nov. 13, 2017).
4
  Claudio v. State, 958 A.2d 846, 850 (Del. 2008).
5
  Younger v. State, 580 A.2d 552, 554 (Del. 1990).
                                              4
ineffective assistance of counsel.6 Cuffee argues, as he did below, that the Superior

Court erred: (i) in denying his motion to compel; (ii) in finding his claims of

improper amendment of the indictment, prosecutorial misconduct, erroneous

admission of photographs showing copper tubing, improper withholding of the

recordings, and violation of his right to represent himself procedurally barred; and

(iii) in finding that his counsel was not ineffective. Cuffee has waived appellate

review of the other claims he raised below but he did not argue in his opening brief.7

       (7)     Cuffee argues that the Superior Court Commissioner should have

granted the motion to compel because the recordings contain Brady v. Maryland8

material (references to a vehicle near the crime scene with air conditioners and a

man in a hoodie) relevant to his postconviction motion, it was more than two years

since he last heard the recordings, and it would not be unduly burdensome for the

State to arrange for him to listen to the recordings again.                   Cuffee raised the

recordings on direct appeal, arguing that the State’s failure to produce recordings of

911 calls and police officers’ radio communications the night of September 19, 2012

was a violation of the State’s discovery obligations and Brady. The Court granted,



6
  Bradley v. State, 135 A.3d 748, 759 (Del. 2016).
7
  Somerville v. State, 703 A.2d 629, 631 (Del. 1997); Murphy v. State, 632 A.2d 1150, 1152 (Del.
1993). These claims included a police officer providing false information, ineffective assistance
based on his counsel not filing a motion for a new trial within seven days, and the State withholding
a traffic ticket issued to Cuffee and a police officer’s notes.
8
  373 U.S. 83 (1963).


                                                 5
over Cuffee’s objections, the State’s motion to expand the record to include a CD of

the recordings, and the State arranged for Cuffee to hear the recordings.

       (8)     The Court addressed and rejected Cuffee’s claims concerning the

recordings on direct appeal. As to the alleged discovery violation, the Court assumed

without deciding that Cuffee’s discovery requests encompassed the recordings, but

found that the failure to produce the recordings was not central to the case and

Cuffee’s substantial rights were not prejudicially affected.9 The Court also found

that Cuffee’s Brady violation claim lacked merit.10 In addressing references on the

recordings to other vehicles less than two miles from the crime scene that could or

were carrying air conditioners, we held:

       As far as the police officers’ observation of a truck with a tarp on Route
       8 while Hopkins was watching the maroon minivan become stuck on
       rocks near the disconnected air conditioners or the possible sighting of
       a vehicle with an air conditioner while Cuffee was being arrested (and
       while the air conditioners at issue were still at 1155 Walker Road), this
       information essentially amounts to the existence of other vehicles that
       could transport or were transporting air conditioners. Unlike the
       maroon minivan driven by Cuffee, these vehicles were not observed
       near the disconnected air conditioners at 1155 Walker Road after a
       nearby resident heard voices and dragging noises. The existence of
       these other vehicles adds little to Cuffee’s defense.11




9
  Cuffee, 2014 WL 5254614, at *6-7.
10
   Id. at *7 (finding that the recordings were not exculpatory or impeaching of the police witnesses’
testimony and that the suppression of the recordings did not undermine confidence in the outcome
of the trial).
11
   Id. The man in the hoodie was with the truck on Route 8, not walking near the disconnected air
conditioners as Cuffee suggests.
                                                 6
Cuffee seeks to listen to the recordings again so he can raise claims that this Court

has already rejected. Rule 61(i)(4) bars any claim that was formerly adjudicated.

Under these circumstances, the Superior Court did not err in denying Cuffee’s

motion to compel.

       (9)     The Superior Court also did not err in finding that Cuffee’s claims

concerning the amendment of the indictment, the prosecutor’s statements about

when Cuffee was at 1155 Walker Road and the theft of air conditioners, the violation

of his right to represent himself, and the withholding of the audio recordings, were

barred by Rule 61(i)(4). This Court addressed, and rejected, all of these claims on

direct appeal.12 Rule 61(i)(4) does not apply to a claim that the Superior Court lacked

jurisdiction or that satisfies Rule 61(d)(i) (new evidence that creates a strong

inference of actual innocence) or 61(d)(ii) (a new rule of constitutional law renders

the conviction invalid),13 but Cuffee has failed to show that any of these exceptions

apply here.

       (10) As recognized by the Superior Court, many of Cuffee’s remaining

claims are barred by Rule 61(i)(3). Rule 61(i)(3) bars any claim that was not asserted




12
   Id. at *2-8 (affirming the amendment of the indictment, finding no prosecutorial misconduct
based on statements regarding when Cuffee was at the crime scene and the harvesting of air
conditioners, holding Cuffee was not entitled to reversal of his convictions assuming there was a
discovery violation, deciding that the Brady claims were without merit, and concluding that Cuffee
waived his right to represent himself).
13
   Super. Ct. Crim. R. 61(i)(5).
                                                7
in the proceedings leading to the judgment of conviction unless the movant shows

cause for relief from the procedural default and prejudice from a violation of the

movant's rights. Cuffee’s counsel objected to the introduction of photographs

showing copper tubing in the minivan at trial, but Cuffee failed to raise this issue on

direct appeal. He has not shown cause for the procedural default.

          (11) Cuffee also makes several prosecutorial misconduct claims that he did

not raise at trial or on appeal. These claims include: (i) the prosecutor introduced

Channellocks into evidence that were not found in the minivan as a police officer

testified; (ii) the prosecutor stated that the bolt cutters found in the minivan were

functional, but failed to show their functionality;14 (iii) three pairs of gloves were

found in the minivan, but the prosecutor only introduced two pairs into evidence;

and (iv) the prosecutor failed to introduce a notebook found in the minivan into

evidence. Cuffee makes no effort to show cause for the failure to raise the claims

concerning the functionality of the bolt cutters. That claim is therefore barred by

Rule 61(i)(3). Cuffee asserts ineffective assistance of counsel to overcome the Rule

61(i)(3) procedural bar for the claims concerning the Channellocks, gloves, and

notebook, which we address along with his other ineffective assistance counsel




14
     The prosecutor invited the jurors to look at and handle the bolt cutters during their deliberations.
                                                    8
claims below. Attorney error short of ineffective assistance of counsel does not

constitute cause for procedural default.15

       (12) To prevail on his ineffective assistance of counsel claims, Cuffee must

establish that: (i) his counsel’s representation fell below an objective standard of

reasonableness; and (ii) but for counsel’s unprofessional errors, there is a reasonable

probability that the outcome of the proceedings would have been different.16

Although not insurmountable, the Strickland standard is highly demanding and

subject to a “strong presumption that the representation was professionally

reasonable.”17     The defendant must also set forth and substantiate concrete

allegations of actual prejudice.18

       (13) Cuffee argues that his counsel was ineffective because he: (i) failed to

investigate or object to the prosecutor’s mishandling of evidence as discussed above;

(ii) failed to request a continuance to review the audio recordings and use those

recordings at trial; (iii) failed to move for a mistrial based on the cumulative effect

of the missing gloves and notebook, the introduction of Channellocks that were not

found in the minivan, and the withholding of the recordings; and (iv) failed to request




15
   Younger v. State, 580 A.2d 552, 556 (Del. 1990).
16
   Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
17
   Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
18
   Younger, 580 A.2d at 556.
                                              9
the removal of a juror that the prosecutor recognized. The Superior Court did not

err in finding Cuffee failed to show his counsel was ineffective.

      (14) First, the record does not support Cuffee’s claim that the prosecutor

introduced Channellocks into evidence that were not found in the minivan as a police

officer testified. This claim is based on Cuffee’s contention that the Channellocks

do not appear in the police reports, the intake form referenced in the State’s

discovery responses under Rule 16, or photographs of the van interior. But the

State’s discovery responses stated that the intake form might not list all physical

evidence (which was also available for inspection), and the Channellocks do appear

in one of the van interior photographs (State Exhibit 21). Cuffee has not shown there

was any prosecutorial misconduct for his attorney to investigate or note an objection.

Nor has Cuffee shown that his counsel had any basis to object to the State not

introducing the notebook into evidence at trial.

      (15) As to the gloves, Cuffee’s trial counsel stated in his affidavit that he did

not challenge the number of gloves introduced at trial versus the number of gloves

found in the minivan because he was concerned that the jury might view that as

reaching for straws and it made more sense to rely on the location of the gloves

(under the bolt cutters instead of on top of the bolt cutters as one would expect).

Cuffee claims that the third pair of gloves would have supported his claim that the

minivan belonged to his son-in-law. But another pair of gloves would simply have


                                         10
been cumulative of his daughter’s testimony that the minivan, tools, and gloves in

the minivan belonged to her husband who used the minivan for his masonry work.

Cuffee has not shown a reasonable probability that introduction of another pair of

gloves into evidence would have resulted in a different outcome.

         (16) As to the recordings, Cuffee’s counsel explained in his affidavit that he

did not learn of the recorded communications among the police officers until his

cross-examination of one of the officers at trial. He felt that the evidence presented

so far was circumstantial at best and that asking for a continuance to review the

recordings might prejudice the jury against Cuffee. After trial he reviewed the

recordings and concluded that there was nothing of value for the defense.

         (17) This Court reached a similar conclusion on direct appeal.            We

concluded that the recordings were consistent with the police officers’ testimony at

trial, and that even if there was information “marginally favorable” to the defense

(the existence of other vehicles that could transport or were transporting air

conditioners), confidence in the outcome of the trial was not undermined.19 It was

the maroon minivan that Cuffee was driving, not the other vehicles, that was seen

near the disconnected air conditioners at 1155 Walker Road. Cuffee has not shown

a reasonable probability of a different result if the recordings had been introduced at



19
     Cuffee, 2014 WL 5254616, at *7.


                                           11
trial. In light of our rulings regarding the Channellocks, the third pair of gloves, the

notebook, and the recordings, Cuffee has not shown that his trial counsel had any

basis to move for a mistrial for cumulative error.

      (18) Finally, Cuffee argues that his trial counsel was ineffective for failing

to request the removal of a juror recognized by the prosecutor. On the second day

of trial, the prosecutor informed the Superior Court that he recognized one of the

jurors from a gym he belonged to in the late 1990s and early 2000s. The prosecutor

stated that they would speak at the gym. At the request of Cuffee’s counsel, the

Superior Court asked the juror separately if he recognized the prosecutor or defense

counsel from anywhere other than the trial. The juror responded that he did not.

Cuffee’s counsel agreed with the Superior Court that there was nothing further to

pursue.

      (19) In his affidavit, Cuffee’s counsel states that the juror did not recognize

the prosecutor and would have been replaced by an alternate who worked for law

enforcement, which Cuffee disputes. Cuffee also argues that his counsel should have

sought the juror’s removal because that is what Cuffee wanted. Given the amount

of time since the prosecutor had apparently last interacted with the juror and the fact

that the juror did not recognize the prosecutor, counsel’s decision not to seek

removal of the juror fell within the range of reasonable professional assistance.




                                          12
Cuffee did not have the right to dictate trial strategy.20 Having carefully considered

the parties’ positions, we conclude that the Superior Court did not err in denying

Cuffee’s motion for postconviction relief.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                              BY THE COURT:
                                              /s/ Collins J. Seitz, Jr.
                                                     Justice




20
   Gunter v. State, 2016 WL 2765360, at *3 (Del. May 9, 2016) (recognizing that criminal
defendant does not have a right to dictate trial strategy); Zimmerman v. State, 2010 WL 546971,
at *2 (Del. Feb. 16, 2010) (recognizing that criminal defendant has a right to counsel, but not a
right to counsel who will not disagree on trial strategy and that counsel is not obligated to obtain
the defendant’s consent to every tactical decision).

                                                13
