IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
Plaintiff,
V.

Cr. ID. No. 1011012275
ANDRE MCDOUGAL,

Defendant.

Submitted: April 10, 2018
Decided: June 11, 2018

Upon Commissioner’s Report and Recommendation
That Defendant’s Motion for Postconviction Relief
Should Be Denied
ADOPTED
ORDER
This 11th day of June, 2018, the Court has considered the Commissioner’s
Report and Recommendation, Defendant’s Motion for Postconviction Relief, and
the relevant proceedings below.
On March 28, 2017, by counsel, Defendant Andre McDougal filed a second
amended motion for postconviction relief. The motion Was referred to a Superior
Court Commissioner in accordance With 10 Del. C. § 512(b) and Superior Court

Criminal Rule 62 for proposed findings of fact and conclusions of 1aW. The

Commissioner issued the Report and Recommendation on March 16, 2018. The

Commissioner recommended that Defendant’s Motion for Postconviction Relief be
denied.

“Within ten days after filing of a Commissioner’s proposed findings of fact
and recommendations . . . any party may serve and file Written objections.”1 On
April 10, 2018, McDougal filed a document titled, “Letter of Review,” pro se.
Though procedurally deficient, the Court Will treat the April 10 letter as an objection
to the Commissioner’s report for the purposes of this Order.2

The Commissioner’s report examined three claims regarding the alleged
ineffectiveness of trial counsel and denied each one. The Court holds that the
Commissioner’s Report and Recommendations dated March 16, 2018 should be
adopted for the reasons set forth therein. The Commissioner’s findings are not
clearly erroneous, are not contrary to laW, and are not an abuse of discretion.3

McDougal’s April 10 objection is also denied. McDougal’s objection relates
to two claims Withdrawn by his counsel, independent of the three claims of trial
ineffectiveness considered at length in the Commissioner’s report. The two
Withdrawn claims relate to misconduct at the Office of the Chief Medical Examiner

(“OCME”). McDougal’s counsel sought a new trial based on evidence of

 

1 Super. Ct. Crim. R. 62(a)(5)(ii).

2 See Johnson v. State, 442 A.2d 1362, 1364 (Del. 1982) (“[A] pro se pleading is judged by a
‘less stringent standard’ than a pleading or document filed by an attorney.”).

3 Super. Ct. Crim. R. 62(a)(4)(iv).

malfeasance at the OCME drug lab and, in the alternative, that McDougal’s trial
counsel Was ineffective for failing to challenge the drug evidence. McDougal’s
post-conviction counsel requested that the drugs central to McDougal’s case undergo
independent testing and, on August 18, 2017, the Commissioner approved the
request and ordered testing. As noted in the Commissioner’s report, McDougal’s
counsel stated in the Reply to the State’s AnsWer to the Second Amended Motion
for Postconviction Relief that “[s]hould the tested sample come back positive as
heroin, Claims l and II Will be Withdrawn.” On January 24, 2018, the Commissioner
received confirmation from an independent forensics lab that the substance in
question Was heroin.

McDougal’s objection is that his counsel dropped the two OCME claims
Without his consent. The Court holds that McDougal Was not prejudiced by this
decision and that pursuing the claims Would have been futile. When reviewing a
case that may have been tainted by OCME’s misconduct, the Court “must focus on
the specific facts of each case, in light of the appropriate standard of review, to
determine if a defendant Was unjustly convicted.”4 The key fact in this case is that
the substance McDougal Was convicted of possessing and trafficking Was indeed

heroin. This fact precludes a finding of a “rational probability that [McDougal] Was

 

4 Brown v. State, 117 A.3d 568, 581 (Del. 2015).
3

convicted on false premises.”5 There was no legal basis to continue pursuing the
two OCME claims in light of the independent test result.

THEREFORE, after careful and de novo review of the record in this action,
the Court hereby adopts the Commissioner’s Report and Recommendation in its
entirety. Defendant’s Motion for Postconviction Relief is hereby DENIED.

IT IS SO ORDERED.

 

The Mrabl ary M. Johnston

 

5Ia'.

