IN TI-HE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE
ID NO. 1608018017

TYREEK DUCETTE

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Defendant. )
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Submitted: February 4, 2019
Decided: February 1 1, 2019

COMMISSIONER’S REPORT AND RECOMMENDATION
THAT DEFENDANT’S MOTION FOR POSTCONVICTION
RELIEF SHOULD BE DENIED

John S. Taylor, Deputy Attorney General, Department of Justice, Wilmington,
DelaWare, Attorney for the State.

Tyreek Ducette, Delaware, pro se.

MAYER, Commissioner

This llth day of February, 2019, upon consideration of Defendant’s Motion
for Postconviction Relief and the record in this matter, the following is my Report
and Recommendation.

BACKGROUND, FACTS AND PROCEDURAL HISTORY

On October lO, 2016, Tyreek Ducette (“Defendant”) was indicted and
charged with Possession of a Firearm by a Person Prohibited and Possession of
Ammunition by a Person Prohibited. The charges stem from a search of
Defendant’s home on August 23, 2016. At the time, an investigation was underway
with respect to an alleged burglary. Defendant’s fingerprint was found on a cash
register. According to the affidavit, the police were looking for receipts related to
the burglary. Law enforcement responded to Defendant’s home and placed him into
custody for an outstanding warrant for burglary. Law enforcement also served a
search warrant and while searching the room in which Defendant was placed into
custody, located a .25 caliber Hawes Handgun and six rounds of ammunition. The
investigator also located Defendant’s identification card near the firearm, and after
Defendant was mirandized, he admitted the firearm was purchased by him out of
concerns for his safety. Defendant had previously been convicted of Carrying a

Concealed Deadly Weapon and he was a person prohibited from possessing a

firearm and ammunition. Defendant was then charged with the instant offenses.l
Defendant waived his right to a jury trial and a bench trial took place on May 7,
2017. At the conclusion of the trial, Defendant was found guilty of both charges.
Defendant was sentenced on June 16, 2017 to five years at Level V plus six months
at Level IV, with some probation to follow.

On June 1 1, 2018, Defendant filed his first Motion for Postconviction Relief.2
Defendant initially presented three claims: (1) trial counsel was ineffective because
he did not “state all the facts that he was supposed to and left out important facts that
could help;” (2) the search and seizure was illegal because he was charged with an
offense unrelated to the search warrant; and (3) the officers did not have probable
cause for the search of his home. On August 31, 2018, Defendant filed a Letter with
additional “merits” in support of his motion.3 Through his Letter, Defendant
expands upon his claims. First, Defendant argues that trial counsel was ineffective
because he did not argue that the gun was unrelated to the alleged burglary and
therefore should not have been seized, resulting in the charges at issue. Next, it

appears Defendant is attempting to argue that trial counsel was ineffective for failing

 

l Defendant was originally charged with Burglary Third, Theft < 1500 and Criminal
Mischief <5000 as well. However, this case only involves the two firearm charges.

2 D.I. # 23.

3 D.I. # 29.

to move to suppress the search because his fingerprint on the cash register was
insufficient to support probable cause for a search of his home.

On October 11, 2018, trial counsel submitted an Affidavit responding to the
allegations4 On December 5, 2018, the State filed a Response to Defendant’s
Motion for Postconviction Relief.5 Defendant was also given an opportunity to file
a reply in support of his motion but did not do so by the date set.

DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF

Before considering the merits of the claims, the Court must first determine
whether there are any procedural bars to the motion.6 Defendant’s first motion,
having been filed within one year of the date of sentencing, is timely.7 Pursuant to
Super. Ct. Crim. R. 61(i)(3) and (4) though, any ground for relief that was not
previously raised is deemed waived, and any claims that were 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, are thereafter

barred. To the extent Defendant is now attempting to directly challenge the search

 

4 D.l. # 31.
5 D.I. # 33.

6 Younger v. sm¢e, 580 A.2d 552, 554 (Del. 1990).

\l

Super. Ct. Crim. R. 61(m)(1) and Super. Ct. Crim. R. 61(i)(1).

warrant, any such claims are barred for his failure to raise them previously.
lneffective assistance of counsel claims though cannot be raised at any earlier stage
in the proceedings and are properly presented by way of a motion for Postconviction
Relief.8

ln order to prevail on an ineffective assistance of counsel claim, a defendant
must show that his counsel’s representation fell below an objective standard of
reasonableness and the deficiencies in counsel’s representation caused the defendant
actual prejudice.9 When reviewing such a claim, the Court must analyze counsel’s
conduct based upon all of the facts of the case and avoid peering through the lens of
hindsight.m Defendant must overcome a strong presumption that counsel’s conduct
was reasonably professional under the circumstances.l] Defendant must also show
that any alleged errors were so serious that his counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth Amendment.12 “A defense attorney

 

8 Whmle v. S¢a¢e, 2016 wL 2585904, at *3 (Del. Apr. 28, 2016); stare v. Evan-
Mayes, 2016 wL 4502303, at *2(De1. super. Aug. 25, 2016).

9 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hz'tchens v. State,
757 A.2d 1278 (Del. 2000).

10 State v. Wright, 653 A.2d 288, 295 (Del. Super., 1994).
ll Ia’. at 293-94 (citations omitted).

12 stare v. Finn, 2012 wL 1980566, at *4 (Del. super., May 23, 2012).

may not be faulted for a reasonable miscalculation or lack of foresight or for failing
to prepare for what appear to be remote possibilities.”13 Great weight and deference
are given to tactical decisions by the trial attorney and counsel cannot be deemed
ineffective for failing to pursue motions that lack merit.14 Further, in order to prevail
on an ineffective assistance of counsel claim, a defendant must show that but for the
errors, there is a reasonable probability that the outcome of the proceedings would
have been different.'5 Mere allegations of ineffectiveness or conclusory statements
will not suffice; instead, a defendant must make and substantiate concrete allegations
of actual prejudice.16

According to trial counsel’s Affidavit, he reviewed the police reports and
search warrant and determined that the warrant was valid and supported by probable
cause. Trial counsel saw no grounds to support a suppression motion and decided

that highlighting the basis for the search at trial would have been against Defendant’s

 

13 State v. Finn, 2012 WL 1980566, at *4 (Del. Super., May 23, 2012) (holding
defense counsel provided active and capable advocacy when evidence against

Defendant was overwhelming) (citing Harrington v. Rl`chter, 131 S.Ct. 770, 787-
792 (2011)).

14 State v. Miller, 2013 WL 871320, at *4 (Del. Super., Feb. 26, 2013).
15 Strl'cklana’, 466 U.S. at 687-88, 694; Hitchens v. State, 757 A.2d 1278 (Del. 2000).

16 Strl`ckland, 466 U.S. at 687-88, 694; Monroe v. State, 2015 WL 1407856, at *5
(Del. Mar. 25, 2015) (citing Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996)).

interests. The State responds in a similar vein. The State concurs with trial counsel’s
analysis and adds that the dresser was lawfully searched for receipts, and upon
finding the firearm, the evidence was properly seized.

Probable cause for the issuance of a search warrant may be found if the
application sets forth facts that are sufficient for a neutral magistrate to conclude that
a crime has been committed, and the property sought to be seized can be found in a
particular place.17 The magistrate may consider the totality of the circumstances to
decide whether there is a fair probability that evidence of a crime will be found in a
particular place.18 This Court provides great deference to the magistrate’s
determination but will ensure that there was a substantial basis for a finding that
probable cause existed.19 Here, the search warrant included the fact that Defendant’s
fingerprint was found on the cash register at the scene of a recent crim'e. The warrant
permitted the officers to search Defendant’s home for evidence of the crime,
including receipts from the business. Based upon these facts and circumstances, and

the deference given to the magistrate’s determination, l do not find that had trial

 

17 Rivera v. State, 7 A.3d 961, 966 (Del. 2010).
18 Id. at 966-967.

19 Ia’.

counsel challenged the warrant, the outcome of the proceedings would have been
different20

If the police are in possession of a valid search warrant, they are permitted to
seize items in plain view under certain circumstances A seizure of an item in plain
view is lawful if (1) the police are lawfully engaged in an activity in a particular
place that brings the officer within plain view of the item to be seized; (2) the police
come across the item inadvertently; and (3) the item seized is of immediate apparent
evidentiary value.21 In the present case, it was known to the officers that Defendant
was a person prohibited, the firearm was found inadvertently while looking for the
receipts, and the police were lawfully engaged in a search. For the foregoing
reasons, Defendant has not demonstrated that trial counsel’s strategy not to file a
motion to suppress, or otherwise challenge the search warrant, was objectively
unreasonable As Defendant has not established error by trial counsel, the Court

need not address the Strz`cklana’ standard further.

 

20 See e.g. Jones v. State, 2011 WL 1900443, at *2 (Del. May 16, 2011) (finding
there was probable cause for a warrantless arrest when fingerprints were found after
a robbery on a washing machine); Godlewskz` v. State, 2013 WL 3807796, at *1 (Del.
July 18, 2013) (recognizing affidavit of probable cause which lead to issuance of
search warrant relied on fingerprint at crime scene that matched defendant).

21 Wicks v. State, 552 A.2d 462, 465 (Del. 1988).

8

F or all of the foregoing reasons, Defendant’s Motion for Postconviction Relief
should be DENIED.

IT IS SO RECOMMENDED.

Ca:§?»,.

The Honorable thaiiiie L. Mayer

oc: Prothonotary
John S. Taylor, Esquire
Ralph D. Wilkinson, Esquire
Tyreek Ducette

