            IN THE SUPREME COURT OF THE STATE OF DELAWARE

ANEL HUBBARD,                           §
                                        §   No. 82, 2017
      Defendant Below,                  §
      Appellant,                        §   Court Below—Superior Court
                                        §   of the State of Delaware
      v.                                §
                                        §   Cr. ID No. 0906021444
STATE OF DELAWARE,                      §
                                        §
      Plaintiff Below,                  §
      Appellee.                         §

                         Submitted: November 15, 2017
                           Decided:   January 23, 2018
                           Corrected: January 24, 2018

Before STRINE, Chief Justice; VAUGHN and TRAYNOR, Justices.

                                       ORDER

      This 24th day of January 2018, having considered the briefs and the record

below, it appears to the Court that:

      (1)   Following a six-day trial in early 2010, a Superior Court jury found

Anel Hubbard guilty of one count of Attempted Murder in the First Degree, five

counts of Possession of a Firearm During the Commission of a Felony, two counts

of Robbery in the First Degree, one count of Carjacking in the First Degree, one

count of Reckless Endangering in the First Degree, and one count of Conspiracy in
the Second Degree.1 The Superior Court declared Hubbard a habitual offender, and

sentenced him to twelve life terms without the possibility of probation or parole.

This Court affirmed Hubbard’s convictions on direct appeal, which was limited to a

challenge of the trial court’s admission of a custodial statement he made to an

investigating detective.2

         (2)    The facts upon which Hubbard was charged and convicted are set forth

    in detail in our opinion resolving Hubbard’s direct appeal.3 For the purpose of

    addressing the claims Hubbard has raised in his motion for post-conviction relief,

    an abbreviated rendition of the facts should suffice.

         (3)    Two men, one of whom was armed with a handgun, “carjacked” John

    Walker’s motorcycle at gunpoint. As one of the carjackers, later identified as Isaiah

    Taylor, drove away on the motorcycle, the other—eventually identified by Taylor

    as Hubbard—fired upon Walker and his companion, striking Walker once in the

    jaw, twice in the thigh, and once in the calf. A search of the residence and room

    where Hubbard resided uncovered a handgun that, according to a forensic firearm

    examiner, fired a bullet that was found at the crime scene.




1
  Hubbard was also found guilty of one count of Possession of a Deadly Weapon by a Person
Prohibited, which was severed and heard simultaneously as a bench trial. State v. Hubbard, 2017
WL 480567, at *1 (Del. Super. Jan. 25, 2017).
2
  See Hubbard v. State, 16 A.3d 912, 914 (Del. 2011).
3
  See id at 914-17.

                                                  2
         (4)    Hubbard was brought to the Wilmington Police Department on the date

    in question where he was interviewed by Detective Leccia. Instead of invoking his

    right to remain silent, Hubbard began to answer Detective Leccia’s questions.

    Initially, Hubbard denied any involvement in the shooting and related a fictitious

    story about his whereabouts the previous night. But as the interrogation progressed,

    Hubbard admitted that he was present at the scene of the crime and that he had given

    the gun to Taylor, who shot Walker. Near the conclusion of the interview, Hubbard

    made additional incriminating statements that could be interpreted as admissions

    that he was the shooter. For instance, when Detective Leccia told Hubbard that a

    surveillance video would reveal the truth of what happened, Hubbard replied:

    “Yeah but my face is covered so if my face was covered how would y’all know it

    was me.”4 Shortly thereafter, when Leccia suggested that Hubbard might have

    reacted to the victim “grabbing for something,” or possibly “pull[ing] a knife,”

    Hubbard replied: “I don’t know what he was getting,” and conceded, “I f                    ed

    up[.] I ain’t mean for it to go down like that.”5

         (5)    Following the affirmance of his convictions on direct appeal, Hubbard

filed a Motion for Postconviction Relief, advancing several claims of ineffective




4
  App. to State’s Ans. Br. at B-84. The statements quoted herein are from an unofficial transcript
of a video recording admitted at trial as State’s Exhibit 66.
5
  Id. at B-85.



                                                    3
assistance of counsel and a cumulative-due-process claim, and requesting an

evidentiary hearing.6

        (6)   On appeal, Hubbard claims that the Superior Court erred by (i) finding

that his ineffective-assistance-of-counsel claims were procedurally barred, (ii)

declining to find that his lawyer was ineffective for failing to request a cautionary

accomplice-testimony instruction commonly referred to as a Bland instruction,7 (iii)

basing its rejection of his other ineffective-assistance claims (for failure to move to

suppress an out-of-court identification and prison phone calls) upon an inadequate

record, i.e., without an evidentiary hearing, and (iv) denying his cumulative-due-

process claim. We address each in turn.

       (7)    We review questions of law and claims alleging constitutional

violations de novo.8 We review the Superior Court’s denial of a request to hold an

evidentiary hearing for an abuse of discretion.9 We will uphold the Superior Court’s

factual findings unless they are clearly erroneous and unsupported by the record.10

       (8)    Hubbard first claims that the trial court erred to the extent that it relied

upon Superior Court Rule of Criminal Procedure 61(i)(3) to bar Appellant’s post-




6
  See Hubbard, 2017 WL 480567, at *1-2.
7
  See generally Bland v. State, 263 A.2d 286 (Del. 1970).
8
  Swan v. State, 28 A.3d 362, 382 (Del. 2011); Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
9
  See Outten v. State, 720 A.2d 547, 551 (Del. 1998).
10
   Lawson v. State, 72 A.3d 84, 88 (Del. 2013).



                                                  4
conviction claims of ineffective assistance of counsel.11 It is undisputed that the

2005 version of Rule 61 is applicable to Hubbard’s motion. We conclude, and the

State concedes, that these claims are not barred by Superior Court Rule of Criminal

Procedure 61(i)(3) “to the extent that they were raised in the context of ineffective

assistance of counsel claims.”12

       (9)     Hubbard next claims that his trial counsel was ineffective for failing to

request a Bland instruction, cautioning the jury to examine the testimony of

Hubbard’s alleged accomplice with suspicion. Though the instruction given to

Hubbard’s jury was not fully in accord with Bland, Hubbard cannot show that, had

the Superior Court issued a Bland instruction, “there is a reasonable probability that

the outcome of the case would have been different.”13 Indeed, the record contains

ample evidence other than Taylor’s testimony that pointed to Hubbard’s guilt,

including Hubbard’s incriminating admissions as set forth above.14 Hubbard’s claim



11
   The Superior Court held that Hubbard’s ineffective-assistance claims were “truly collateral
attacks on the evidence which as used to convict him” and were therefore procedurally barred
because they were “not asserted in the proceeding leading to the conviction.” See Hubbard, 2017
WL 480567, at *11.
12
   See State’s Ans. Br. at 10.
13
   Strickland v. Washington, 466 U.S. 668, 694 (1984).
14
    The jury also heard recordings of Hubbard’s phone conversations during his pre-trial
incarceration in which he observed that the police would not find fingerprints on the gun because
he had “wiped it off.” App. to Appellant’s Opening Br. at A83. Because of this substantial amount
of corroborating evidence, this is not the sort of case where a Bland instruction is most in need—
cases where, as the Bland instruction itself puts it, “there is nothing in the evidence, direct or
circumstantial, to corroborate the alleged accomplices’ accusation that [the defendant] participated
in the crime.” Bland v. State, 236 A.2d 286, 289-90 (Del. 1970).



                                                     5
that he was prejudiced by the absence of a more robust Bland instruction is, on this

trial record, without merit.

       (10) Hubbard next argues that the Superior Court erred in denying his post-

conviction claim that his trial counsel was ineffective for failing to move to suppress

his prison phone calls. Hubbard seems to argue that, because this Court in Johnson

v. State (“Johnson I”)—decided in 2009—adopted the two-pronged test announced

in Procunier v. Martinez15to determine whether the seizure of an inmate’s outgoing

email is permissible under the First Amendment, his lawyer was ineffective for

failing to move to suppress recordings of his outgoing telephone calls.16 This

argument fails for three reasons.

       (11) First, Procunier v. Martinez was a class action, challenging on First

Amendment grounds, the constitutionality of California prison regulations relating

to the censorship of prisoner’s incoming and outgoing mail. It did not involve the

use of seized mail in a criminal prosecution or application of the exclusionary rule.

To be sure, in Johnson I, this Court applied the Procunier test to a claim that an

inmate’s outgoing mail should have been suppressed because the State’s seizure of



15
   416 U.S. 396, 413 (1974). “First, the regulation or practice in question must further an important
or substantial governmental interest unrelated to the suppression of expression. Prison officials . . .
must show that a regulation authorizing censorship furthers one or more of the substantial
government interests of security, order, and rehabilitation. Second, the limitation of First
Amendment freedoms must be no greater than is necessary or essential to the protection of the
particular governmental interest involved.”
16
   Johnson v. State, 983 A.2d 904,922 (Del. 2009) (“Johnson I”).

                                                      6
the mail violated his First and Fourth Amendment rights and found that the seizure

passed the test. The Court did not, however, hold that the failure of the Procunier

test would warrant application of the exclusionary rule, which is a remedy available

for Fourth Amendment claims.

          (12) Second, in Johnson I, the defendant was unaware that his outgoing mail

was subject to inspection and copying. In contrast, when Hubbard placed the calls

the recordings of which were admitted at trial, he was warned that the calls were

“subject to monitoring and recording,”17 eliminating any expectation of privacy he

might otherwise have had.

          (13) Finally, we did not apply a Procunier-type analysis to prison phone

calls until over two years after Hubbard’s trial in a case coincidentally also captioned

Johnson v. State (“Johnson II”).18              For all these reasons—the questionable

applicability of the exclusionary rule to First Amendment claims, the absence of an

expectation of privacy, and the absence of legal authority at the time of Hubbard’s

trial—the decision of Hubbard’s trial counsel not to file a motion to suppress the

prison phone calls was not objectively unreasonable.

          (14) Hubbard also claims that his trial counsel was ineffective for failing to

challenge Taylor’s identifications of Hubbard.                Upon review of an affidavit



17
     See App. to Opening Br. A82, A96.
18
     Johnson v. State, 53 A.3d 302, 2012 WL 3893524, at *2 (Del. 2012) (updated table decision).

                                                    7
submitted by Hubbard’s trial counsel below, Hubbard’s counsel’s tactic to pursue

cross-examination over suppression does not appear to have been unreasonable.

This claim, therefore, also lacks merit.

      (15) Hubbard next claims his right to a fair trial was infringed based upon

the cumulative effect of the above errors. As Hubbard’s underlying claims are

without merit or did not prejudice him, he has failed to establish cumulative error.

      (16) Finally, Hubbard argues that the case should be remanded because the

Superior Court abused its discretion when it refused to hold an evidentiary hearing

on his Rule 61 motion. It appears the record below sufficiently informed the court

of the nature of Hubbard’s claims. The Superior Court thus properly acted within

its discretion to dispose of Hubbard’s motion without holding an evidentiary hearing.

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

Court is AFFIRMED.

                                           BY THE COURT:


                                           /s/ Gary F. Traynor
                                           Justice




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