IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
Plaintiff, )
)
)
V ) Cl‘. ID. NO. 1407011336
)
) ;“,;
MARCUS ROSSER, ) g,-.-._, `
) "~-z ````
Defendant. ) m
Z':Z;
Submitted: August 21,. 201 8 g
Decid€d: November 26, 2018 m

COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
SHOULD BE DENIED
AND
RULE 61 COUNSEL’S MOTION TO WITHDRAW SHOULD BE GRANTED.

Sonia Augusthy, Esquire, Deputy Attomey General, Department of Justice, Wilmington,
Delaware, Attorney for the State.

Christopher S. Koyste, Esquire, Law Offlces of Christopher S. Koyste, LLC, Attorney for
Defendant Marcus Rosser.

PARKER, Commissioner

This 26th day of November, 2018, upon consideration of l)efendant’s Motion for

Postconviction Relief, it appears to the Court as follows:
BACKGROUND AND PROCEDURAL HISTORY

Defendant Marcus Rosser (“Rosser”) was arrested on July 14, 2014 and later
indicted on the following charges: one count of Assault First Degree, one count of
Carrying a Concealed Deadly Weapon (“CCDW”), one count of Robbery First Degree,
one count of Aggravated Possession of a Firearrn by a Person Prohibited (“PFBPP”), two
counts of Possession of a Firearrn During the Commission of a Felony (“PFDCF”), and
two counts of Endangering the Welfare of a Child (“EWC”). Rosser was re-indicted on
October 27, 2014, and the charges of Resisting Arrest and Offensive Touching of a Law
Enforcement Officer were added.

In May 2015, following a four-day trial, a Superior Court jury convicted Rosser
of one count of Assault First Degree, one count of Robbery in the First Degree, one count
of CCDW, one count of PFBPP, and two counts of PFDCF.

A judgment of acquittal was entered on the charges of Offensive Touching of a
Law Enforcernent Offlcer, Resisting Arrest, and the two counts of EWC.

On August 21, 2015, Rosser was sentenced to a total period of forty years at
Level V incarceration, suspended after serving eighteen years, for decreasing levels of

supervision

man with the gun robbed Buchanan of a pack of cigarettes,9 which he appeared to have
discarded as he drove away.10 The police were notified. Later, in the early morning
hours of July 14, 2014, the police showed Buchanan a photographic array. Buchanan
identified Rosser as the man who robbed him at gunpoint.ll

Shortly after the Buchanan robbery, the police conducted a motor vehicle stop of
Rosser’s SUV.12 During the course of a search of the SUV, the police seized a revolver
with one bullet missing.13

Both Maddrey and Buchanan testified at trial and identified Rosser as their
assailant14 Rosser did not testify at trial.15

Rosser’s four-day jury trial began on April 28, 2015. At trial, the parties
stipulated that Rosser was a person prohibited.16 Following the close of the State’s case,
Rosser moved for a judgment of acquittal on the charges of Resisting Arrest, Off`ensive
Touching, Assault First Degree, and PFBPP.17 The court granted the motion in part and
entered a judgment of acquittal on the charges of Resisting Arrest and Offensive
Touching. The court also entered a judgment of` acquittal on the two counts of
Endangering the Welfare of a Child, which was raised sua sponte by the court.18 The

motion was denied on the other charges.

 

9 Ia'.

10 April 30, 2015 Trial Transcript, at pgs. 17-19.

ll Rosser v. State, 2016 WL 1436604 (Del.).

12 lar

13 ld_ ,

14 Rosser v. State, 2016 WL 1436604, *l (Del.).

15 Rosser v. State, 2016 WL 1436604, *l (Del.).

16 April 30, 2015 Trial Transcript, at pg. 151.

17 Superior Court Docket Nos. 56 & 57; April 30, 2015 Trial Transcript, at pgs. 156-175; Superior Court
Docket No. 62.

13 Superior Court Docket No. 62; May 4, 2015 Trial Transcript, at pg. 78.

On the final day of trial, May 4, 2015, the State notified the parties that it had
received evidence of contact between Rosser’s family and one of the jurors.19 The State
obtained Rosser’s prison phone calls which illustrated the improper communication with
the juror.20 The juror was excused and the remainder of the jury was individually voir
dired to ensure the issue was isolated to only the one juror.21

Thereafter, Rosser was convicted of Assault First Degree, Robbery First Degree,
CCDW, PFBPP, and two counts of PFDCF. Rosser was sentenced on August 21, 2015 to
a total Level V term of forty years, to be suspended after eighteen years for decreasing
levels of supervision. The minimum mandatory Level V time was seventeen years. The
court imposed an additional year beyond the minimum mandatory because of Rosser’s
actions during the trial which appeared to have been an attempt to tamper with a juror.22

RULE 61 MOTION AND COUNSEL’S MOTION TO WITHDRAW

Rosser filed a timely pro se motion for postconviction relief and request for the
appointment of counsel on January 3, 2017. The court granted Rosser’s request for the
appointment of counsel and Rule 61 counsel was appointed and given leave to amend
Rosser’s pro se motion.

On November 7, 2017, assigned counsel filed a Motion to Withdraw as
Postconviction Counsel pursuant to Superior Court Criminal Rule 61(e)(6). Superior
Court Criminal Rule 61(e)(6) provides that:

If counsel considers the movant’s claim to be so lacking in
merit that counsel cannot ethically advocate it, and counsel is

not aware of any other substantial ground for relief available to
the movant, counsel may move to withdraw. The motion shall

 

19 May 4, 2015 Trial Transcript, at pgs. 3-4.

20 May 4, 2015 Trial Transcript, at pgs. 9-13.

2' May 4, 2015 Trial Transcript, at pgs. 12-45.

22 August 21, 2015 Sentencing Transcript, at pg. 12.

explain the factual and legal basis for counsel’s opinion and
shall give notice that the movant may file a response to the
motion within 30 days of service of the motion upon the

movant.

In the motion to withdraw, Rosser’s Rule 61 counsel represented that, after
undertaking a thorough analysis of Rosser’s claims, counsel has determined that the
claims are so lacking in merit that counsel cannot ethically advocate any of them.23 Rule

61 counsel further represented that, following a thorough review of the record, counsel

24

was not aware of any other substantial claim for relief available to Rosser. Rosser’s

Rule 61 counsel represented to the court that there are no potential meritorious grounds
on which to base a Rule 61 motion and has therefore sought to withdraw as counsel.25

On November 7, 2017, Rosser’s Rule 61 counsel advised Rosser of his motion to
withdraw and advised that he had the right to file a response thereto within 30 days, if
Rosser desired to do so.26 Rosser did file a response in which he opposed counsel’s
motion to withdraw,27which he later supplemented28 A briefing schedule was entered
and pursuant thereto trial counsel submitted an Affidavit in response to Rosser’s Rule 61

motion,29 Rosser supplemented his issues/points for consideration in his Rule 61

motion,30 the State filed a response31, and Rule 61 counsel filed a reply thereto.32

 

23 See, Superior Court Docket Nos. 96, 97, 98- Defendant’s Rule 61 counsel’s Motion to Withdraw along
with the accompanying Memorandum in Support of Motion to Withdraw and appendix.

24 Superior Court Docket No. 96- Rule 61 Counsel’s Memorandum in Support of Motion to Withdraw, at
pg. 32.

25 Id_

26 See, Superior Court Docket No. 96- letter dated November 7, 2017 advising Rosser of the Motion to
Withdraw.

27 Superior Court Docket No. 100.

28 Superior Court Docket Nos. 103 & 107.

29 Superior Court Docket No. 102.

2° Superior Court Docket No. 103 & 107.

31 Superior Court Docket No. 104.

32 Superior Court Docket No. 108.

On August 21, 2018, after briefing was fully completed, Rosser’s Rule 61 motion
was referred to the undersigned Commissioner to assist in deciding the pending motion.

In order to evaluate Rosser’s Rule 61 motion and to determine whether his Rule
61 counsel’s motion to withdraw should be granted, the court should be satisfied that
Rule 61 counsel made a conscientious examination of the record and the law for claims
that could arguably support Rosser’s Rule 61 motion. In addition, the court should
conduct its own review of the record in order to determine whether Rosser’s Rule 61
motion is so totally devoid of any, at least, arguable postconviction claims.33

DEFENDANT’S RULE 61 MOTION IS WITH()UT MERIT

Rosser raises a number of ineffective assistance of counsel claims in his Rule 61
motion. To prevail on a claim of ineffective assistance of counsel, the defendant must
satisfy the two-prong standard of Strickland v. Washington.34 This test requires that
defendant prove that trial counsel’s performance was (1) objectively unreasonable, and
(2) that the defendant was prejudiced as a result.35

Under the first prong, judicial scrutiny is highly deferential. Courts must ignore
the distorting effects of hindsight and proceed with a strong presumption that counsel’s
conduct was reasonable.36 A court deciding an actual ineffectiveness claim must judge
the reasonableness of counsel’s challenged conduct on the facts of the particular case,

viewed as of the time of counsel’s conduct.37

 

33 Matos v. State, 2015 WL 5719694, *2 (Del.).
24 Strickland v. Washington, 466 U.S. 668 (1984).
35 la'. at 694.

36 Id. at 689.

37 Id. at 690.

Under the Second prong, it is not enough for the defendant to show that the errors
had some conceivable effect on the outcome of the proceeding38 In other words, not
every error that conceivably could have influenced the outcome undermines the
reliability of the result of the proceeding39 Some errors will have a pervasive effect and
some will have had an isolated, trivial effect.40 The movant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different41 A reasonable probability is a probability
sufficient to undermine confidence in the outcorne.42 The court must consider the totality
of the evidence and must ask if the movant has met the burden of showing that the
decision reached would reasonably likely have been different absent the errors.43

Mere allegations.of ineffectiveness Will not suffice; instead, a defendant must
make and substantiate concrete allegations of actual prejudice.44 Although not
insurmountable, the Sl'rickland standard is highly demanding and leads to a strong
presumption that counsel’s conduct fell within a wide range of reasonable professional
assistance.45 Moreover, there is a strong presumption that defense counsel’s conduct
constituted sound trial strategy.46

In Harrington v. Richter,47 the United States Supreme Court explained the high

bar that must be surmounted in establishing an ineffective assistance of counsel claim. In

 

38 Id. at 693.

39 Id. at 693.

40 Id. at 695-96.

41 Dale v. State, 2017 WL 443705, * 2 (Del. 2017); Strickland v. Wash:'ngron, 466 U.S. 668, 694 (1984).
42 Id_

43 Dale v. State, 2017 WL 443705, * 2 (Dcl. 2017); Stricklana' v. Washington, 466 U.S. 668, 695-696
(1934).

44 Younge)' v. State, 580 A.2d 552, 556 (Del. 1990).

45 A[bwj.' v. S!G!e._ 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008).
46 Strl`cklana' v. Washington, 466 U.S. 668, 689 (1934).

47 Harrington v. Richter, 131 S.Ct. 770 (2011).

Harrington, the United States Supreme Court explained that representation is
constitutionally ineffective only if it so undermined the proper functioning of the
adversarial process that the defendant was denied a fair trial.48 Counsel’s representation
must be judged by the most deferential of standards.49

With this backdrop in mind we turn to Rosser’s specific claims of trial counsel’s

ineffectiveness

Claim I: Trial Counsel Was Ineffective for Failing to File a Motion to Sever the
PFBPP Cl;z_\rge and for Stinulating that Rosser was a Pcrson I’rohibited
Rosser claims that trial counsel was ineffective for stipulating that he was a
person prohibited from owning a firearm and for not filing a motion to sever the PFBPP
charge. j
The stipulation, as presented to the jury, read: “It is hereby stipulated and agreed
to between the State of Delaware and the defendant, Marcus Rosser, that on or about July
13, 2014 Marcus Rosser was a person prohibited from possessing a firearm.”50 This
stipulation was read to the jury immediately prior to the closing of the State’s case.51
Rosser, personally, along with trial counsel, agreed to and signed the stipulation52
In his Affidavit in response to Rosser’s Rule 61 motion, trial counsel explains that
his decision for stipulating that Rosser was a person prohibited was tactical as was his

decision not to move to sever the PFBPP charge.53 The decision was made to prevent the

jury from discovering the nature of the defendant’s prior conviction, as well as to

 

48 Id. at * 791.

49 Id. at *787-88.

50 Superior Court Docket No. 54- Stipulation of Fact

5‘ April 30, 2015 Trial Transcript, at pg. 151.

52 Superior Court Docket No. 54- Stipulation ofFact

52 Superior Court Docket No. lUZ-szuary 3, 2018 Affidavit of Trial Counsel, at *1-3.

“sanitize” the indictment. The stipulation contained no mention of the prior felony that
rendered Rosser a person prohibited, nor did it reference any felony conviction at all.
The stipulation was sanitized to avoid the jury from even knowing that Rosser had a prior

felony conviction.54

In his Affidavit, trial counsel represents that he met with Rosser prior to jury
selection, at which time they discussed the issue, and Rosser agreed to move forward
with the stipulation55 Rosser’s consent and agreement to the stipulation is further
evidenced by his signature on the stipulation56

By trial counsel making the strategic decision to stipulate to Rosser’S person
prohibited status, trial counsel prevented the State from introducing evidence of Rosser’s
criminal history. Had trial counsel not entered into the stipulation, the jury would have
heard that Rosser was convicted of felony drug possession, Possession of a Narcotic
Schedule 11 Controlled Substance Within 1,000 Feet of a School. The fact that Rosser
was previously convicted of felony drug possession would not have been helpful to his
defense in the subject action especially in light of the fact that he was facing charges
stemming from a drug transaction Because of trial counsel’s actions, the jury was never
informed of what felony Rosser committed that made him a person prohibited

In Johnson v. State,57 the Delaware Supreme Court found trial counsel’s decision

to stipulate to defendant’s person prohibited status, without disclosing the reason, to be a

 

54 Superior Court Docket No. 102-January 3, 2018 Affidavit of Trial Counsel, at * 3.
55 Superior Court Docket No. 102-January 3, 2018 Affidavit of Trial Counsel, at * 3.
56 Superior Court Docket No. 54- Stipulation of F act

57 983 A.2d 904 (Del. 2009).

tactical decision made in an effort to avoid the jury learning about the nature of the prior
conviction58

Defense counsel must be given wide latitude in making tactical decisions.59 There
is a strong presumption that defense counsel’s conduct constituted sound trial strategy.60
In the subject action, trial counsel’s decision to stipulate to Rosser’s person prohibited
status was a reasonable strategic decision Rosser cannot demonstrate that trial counsel’s
decision to stipulate fell below an objective standard of reasonableness or that he was
prejudiced by the stipulation

In trial counsel’s Affidavit in response to Rosser’s Rule 61 motion, he further
represents that the decision to enter into the stipulation and have all the charges tried
together, rather than to seek to sever the PFBPP charge, evolved into a strategic position
As trial counsel explained in his Affidavit, Rosser’s unusual demeanor led him to believe
that Rosser was under the impression that Buchanan would not appear at trial and that
Maddrey, who was incarcerated, would not be cooperative as a State witness.61

Based on this information trial counsel believed it would be in Rosser’s best
interest to move forward on all the charges at the same time if the State’s witnesses were
not going to be cooperative, as this would deny the State multiple opportunities to secure
witnesses and obtain a conviction62 Trial counsel wanted all claims presented together at

one time, so as not to provide the State with another opportunity to prosecute Rosser on

any of the charges.63

 

58 Johnson v. State, 983 a.2d 904, 923 (Del. 2009).

59 Harrington v. Richter, 131 S.Ct. 770, 788-789 (2011).

60 Strickland v. Washington, 466 U.S. 668, 689 (1984); Harrington v. Richter, 131 S.Ct. 770 (2011).
61 Superior Court Docket No. 102-lanuary 3, 2018 Affidavit of Trial Counsel, at * 2-3.

62 Superior Court Docket No. 102-January 3, 2018 Affidavit of Trial Counsel, at *3.

65 Superior Court Docket No. 102-January 3, 2018 Affidavit of Trial Counsel, at * 1-3.

10

That the witnesses cooperated and this strategy was ultimately unsuccessful does
not render trial counsel’s tactical decision unreasonable As trial counsel acknowledged,
he discussed his trial strategy with Rosser, and Rosser agreed to move forward with the
charge on the basis of their intended strategy.64

In considering post-trial attacks on counsel, Strickland cautions that trial
counsel’s performance should be reviewed from trial counsel’s perspective at the time
decisions were being made.65 lt is all too easy for a court, examining trial counsel’s
defense after it has proved unsuccessful to conclude that a particular act or omission of
counsel was unreasonable.66 A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting efforts of hindsight. Second guessing or
“Monday morning quarterbacking” should be avoided.67

Since Rosser’s person prohibited status was an essential element of the offense for
which he was charged, the State would have been required to introduce evidence of
Rosser’s prior felony that rendered him a person prohibited from possessing a fireman
The State would have been required to do so irrespective of whether or not Rosser chose
to testify.

Rosser claims that the jury may have been unable to compartmentalize their
judgment based on his prior criminal record unless the PFBPP charge was severed.
Rosser overlooks the fact that, in his case, the jury was never presented with evidence of
his prior criminal record, because he, along with trial counsel, had Stipulated to his person

prohibited status. The record does not support that Rosser was prejudiced by the joinder

 

64 Superior Court Docket No. 102-January 3, 2018 Affidavit of Trial Counsel, at * 1-3.
65 Strickland, 466 U.S. at 688-89.
66 Strickland, 466 U.S. at 688-89.
67 Strickland, 466 U.S. at 688-89.

11

of the offenses or that the jury could not compartmentalize its judgment of guilt or

innocence.

There are countless ways to provide effective assistance in any given case.68
Even the best criminal defense attorneys would not defend a particular client in the same
way. Consequently, defense counsel must be given wide latitude in making tactical
decisions.69 Where, as here, the jury is not informed of the defendant’s criminal history or
the nature of the past felony conviction, and trial counsel strategically declined to request
severance of the PFBPP charge, neither prong of Strickland is met. That the decision
ultimately proved to be unsuccessful does not make it unreasonable This claim is

without merit.

Claim II: Trial Counsel Was Ineffective for Failing to file a Motion to Sever the
Robbcrv and Assa\_llt Cases

Rosser claims that trial counsel was ineffective for failing to file a motion to sever
the robbery case in which Buchanan was the victim from the assault case in which
Maddrey was the victim. Rosser raised this same claim, only not in the context of an
ineffective assistance of counsel claim, on direct appeal.

On direct appeal, Rosser contended that he was unfairly prejudiced by the
consolidation of the assault case and the robbery case. On direct appeal, the Delaware
Supreme Court held that there was no plain error in the consolidation of these offenses

for trial.70 The Delaware Supreme Court reasoned that the charged offenses were

 

66 Harrington v. Richter, 131 S.Ct. 770, 787-788 (2011).
69 Harrington v. Richter, 131 S.Ct. 770, 788-789 (2011).
20 Rosser v. State, 2016 WL 1436604, * 2 (Del.).

12

“connected together” under Superior Court Criminal Rule 8(a) because they happened
close in time and close in location and involved interconnecting evidence.

The interconnecting evidence included Rosser’s SUV and the same revolver that
was used in both offenses. lt also included the fact that police found the revolver during
a search of Rosser’s SUV which was conducted on the same evening as both crimes.71
Moreover, both victims were able to positively identify Rosser when interviewed by the
police and when testifying at trial.72 Under the circumstances of this case, the Delaware
Supreme Court found no merit to Rosser’s suggestion that the Superior Court committed
plain error in failing to order separate trials of the robbery and assault cases.73

On direct appeal, the Delaware Supreme Court would not consider Rosser’s claim
that trial counsel was. ineffective for not requesting that the charges be severed.74 In his
Rule 61 motion, Rosser now raises this claim that trial counsel was ineffective for not
filing a motion to sever these cases.

In response to this ineffective assistance of counsel claim, trial counsel represents
that he did not file a motion to sever the cases because he believed that such a motion did
not have merit as the facts and evidence were inextricably intertwined75 In both
incidents, the victims gave the police similar descriptions of the suspect, vehicle and gun
used by the assailant. Shortly after the Buchanan armed robbery, Rosser was
apprehended during a motor vehicle stop. The police recovered a revolver from Rosser’s

vehicle. The motor vehicle stop was in the same apartment complex where Maddrey Was

shot. The revolver recovered from Rosser’s vehicle had one spent casing within the

 

71 R0sser v. State, 2016 WL 1436604, *2 (Del.).

72 Id_

73 Id

741d

25 Superior Court Docket No. 102-January 3, 2018 Affidavit of Trial Counsel, at *2.

13

chamber. The victims, Maddrey and Buchanan, both positively identified Rosser as the
perpetrator of the alleged crimes. Trial counsel cannot be deemed ineffective for failing
to file a motion or raise an issue which has no legal or factual basis.76

Trial counsel further represents that he believed it would be in Rosser’s best
interest to move forward on all the charges at the same time given his belief that there
was a possibility that the State’s witnesses were not going to be cooperative77 If charges
were severed, it would give the State an opportunity to issue a material witness warrant
for the complaining witnesses, to secure witnesses and obtain a conviction78 For these
reasons, trial counsel determined, in agreement with Rosser, that the defense strategy was
to go forward with one trial.

Defense counsel must be given wide latitude in making tactical decisions.79 There
is a strong presumption that counsel’s conduct was reasonable and constituted sound trial
strategy.80 The United States Supreme Court cautioned that reviewing courts must be
mindful of the fact that unlike a later reviewing court, the trial attorney observed the
relevant proceedings, knew of materials outside the record, and interacted with his client,
with opposing counsel, and with the trial judge.81

Rosser has failed to establish that his trial counsel was deficient for not seeking to
sever the robbery case from the assault case or that he suffered actual prejudice as a result

thereof. This claim is without merit.

 

76 State v. Exum, 2002 WL 100576, at *2 (Del. Super.), affirmed, 2002 WL 2017230, at *1 (Del.).

77 Superior Court Docket No. 102-January 3, 2018 Affidavit of Trial Counsel, at *3.

78 Superior Court Docket No. 102-January 3, 2018 Affidavit of Trial Counsel, at *3.

79 Harrington v. Rz`chter, 131 S.Ct. 770, 788-789 (2011).

60 Outten v. State, 720 A.2d 547, 557 (Del. 1998); Strickland v. Washington, 466 U.S. 668, 689 (1984);
Hcirrf)tg!on v, Richre)', 131 S.Ct_ 770 (20| l).

111 I'!.‘:.'rr."ngton v. Richhzr, 131 S.Cl. 770, 787-788 (2011).

14

_(_jglim III: Trial Counsel Was Ineffective for FM§§ to Investiggte Witnesses

Rosser claims that trial counsel was ineffective for failing to investigate the case
and locate and interview defense witnesses. In Rosser’s various submissions, he
contended that certain individuals should have been interviewed but were not.

In his Affidavit in response thereto, trial counsel represents that the defense was
premised on two theories: identity and the State’s inability to prove guilt beyond a
reasonable doubt.82 Trial counsel does not recall Rosser suggesting he had alibi
witnesses nor does he recall being provided with the names of any potentially
exculpatory witnesses85 Trial counsel cannot be ineffective for failing to investigate
alibi or exculpatory witnesses whose names were never provided to him.

One of the individuals that Rosser claims trial counsel should have located and
interviewed Was a Mr. “Nas”. Rosser claims that Mr. “Nas” was a witness to the
incidents and could have corroborated Rosser’s version of the events. Rule 61 counsel
hired a private investigator to interview Mr. “Nas” and determined that Mr. “Nas” was
unable to provide information favorable to the defense.84 Assuming that Rosser even
provided the identity of “Nas” to trial counsel, Rosser cannot satisfy the second prong of
Stricklana' and establish that he suffered actual prejudice as a result of trial counsel’s
failure to investigate or subpoena him for trial.

Rosser contends that if Mr. Nas had been called to testify he would have at least
corroborated some of Rosser’s version of events.85 Rosser claims that Mr. Nas would

have established that Rosser had an argument with Mr. Nas at the convenience store and

 

82 Superior Court Docket No. 102-January 3, 2018 Affidavit of Trial Counsel, at * 3-4.
113 Superior Court Docket No. 102-January 3, 2018 Affidavit of Trial Counsel, at * 4.
54 Superior Court Docket No. 108- Rule 61 Counsel’s Reply, at pg. 9.

65 Superior Court Docket No. 107, Rosser’s Responsive Brief, at pg. 7

15

that Rosser left the scene.86 lt is hard to see how this testimony would have been
particularly helpful to Rosser. The facts presented at trial were that Maddrey agreed at
the convenience to sell Rosser marijuana at a different location and that Rosser left the
convenience store. Rule 61 counsel, after Mr. Nas was interviewed, has concluded that
having Mr. Nas testify at trial would not have been helpful to the defense. Rosser has not
established that counsel was ineffective for not calling Mr. Nas at trial, or that he suffered
actual prejudice as a result thereof.

ln addition, Rosser claims that trial counsel failed to interview State witness
Cheyenne Spencer, who was a witness to the robbery of Buchanan At trial, Ms. Spencer
testified that she was with Buchanan during the alleged robbery.87 She was unable to
identify the individual she saw that night, and testified th_at she did not know him,_ only
heard him tell Buchanan “to come here” and nothing more, was unable to provide a clear
description of the vehicle involved, noted that Buchanan was “getting smart” with the
individual, and was barely able to see the individual’s face. She did not know Rosser.88
Although Spencer testified that she saw the man “run” Buchanan’s pockets, she did not
indicate having witnessed anything being taken from Buchanan or seeing a gun.89

Immediately following direct examination, trial counsel informed the court that it
was the first time he heard of this witness and although she did not have anything that

would be considered Brady material, he would be asking for Jenks material.90 Following

a review of the Jenks material, trial counsel decided not to cross-examine the witness.91

 

861d

87 Apr1129, 2015 Trial Transcript, at pgs. 184-200.
118 Apri129, 2015 Trial Transcript, at pgs. 184-200.
89 April 29, 2015 Trial Transcript, at pgs. 184-200.
90 April 29, 2015 Trial Transcript, at pgs. 196-200.
91 April 29, 2015 Trial Transcript, at pgs. 199-200.

16

Trial counsel had not known of Spencer prior to trial. Trial counsel appropriately
requested Jenks material before proceeding with cross-examination Spencer’s testimony
was helpful to Rosser, in that she was unable to identify him or his vehicle, testified that
Buchanan was provoking him, and did not allege to have seen a gun or anything taken
from Buchanan Rosser has failed to substantiate this claim of ineffective assistance.
Rosser does not state what information would have been obtained during cross-
examination or during a pre-trial interview that would have been added anything
additional that would have been beneficial to him. Rosser has not established that his
trial counsel’s conduct was deficient or that he suffered actual prejudice as a result
thereof.

Rosser next claims that trial counsel failed to interview Frank Walls, a witness to
the robbery of Buchanan Walls was listed in the police report as having witnessed the
robbery. He was not called by the State at trial. Walls did not testify at trial and there
was nothing in the record to support an inference that his potential testimony would have
differed from Ms. Spencer. In fact, the police officer on the scene at the night of the
incident noted that Walls’ “account of the events and description was similar to”
Buchanan’s statement92 The record offers no reason why trial counsel should have
believed Walls would have been able to provide anything helpful, and not harmful, to his
defense. Rosser has not shown deficient conduct or actual prejudice.

Rosser contends that trial counsel was ineffective for waiting until trial to obtain
Leroy Boyd’s contact information to interview him as a potential defense witness. Boyd

had been subpoenaed to appear at trial by the State and failed to appear.

 

92 Superior Court Docket No. 97- Rule 61 Counsel’s Appendix to Motion to Withdraw, at A16.

17

Apparently, both Leroy Boyd and another witness, Troy Bordley, were in the
vehicle with Maddrey as he was being driven to the hospital after he had been shot. Troy
Bordley testified that on the way to the hospital Maddrey said that Rosser (“Markie”)
shot him. Apparently, however, the driver of the vehicle, Leroy Boyd, did not hear any
such statement(s). When the State called Troy Bordley as its next witness, trial counsel
put the discrepancy between Bordley’s testimony and Leroy Boyd’s on the record, and
asked the State to provide Leroy Boyd’s contact information so that an investigator could
go speak with him.93

The trial court confirmed that Leroy Boyd had been subpoenaed by the State, and
ordered the State to provide his contact information to the defense.94

The record reflects that trial counsel was under the impression that Boyd would
be attending the trial because he had been subpoenaed by the State. Thus, trial counsel
would have had an opportunity to impeach Boyd with his prior statements, in the event
that he changed his story while testifying In the event that his testimony was consistent
with his prior statements, his testimony would have been favorable to Rosser’s defense,
as it would have conflicted with Mr. Bordley’s testimony. Accordingly, trial counsel was
not deficient for not speaking with Mr. Boyd prior to trial, as trial counsel already had the
necessary information to either impeach Boyd should his testimony change at trial or
obtain favorable testimony from him if it did not.

Trial counsel had the ability to cross-examine all witnesses who testified on

behalf of the State. There was no reason to believe that a witness who ignored a

 

95 April 29, 2015 Trial Transcript, at pgs. 121-124.
94 April 29, 2015 Trial Transcript, at pgs. 121-124.

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subpoena from the State would have appeared had the subpoena been instead issued by
the defense.

Once it became clear that Boyd had not shown up at trial, despite the subpoena,
trial counsel acted reasonably in acquiring his contact information to have a private
investigator speak with him. During the court’s colloquy with Rosser regarding his right
to testify, the court noted that counsel was still trying to determine whether certain
witnesses were available and, if available, whether it was in Rosser’s best interest to call
those witnesses.95 The court advised Rosser that they would again discuss his waiver of
his right to testify in the event that the defense strategy changes “depending on who is
available or what is available.”96

Thus, the record reveals that trial counsel followed up on the possibility of calling
Mr. Boyd as a witness and was weighing the strategic benefit in calling him or not calling
him to testify. Accordingly, the record supports that it was a strategic decision for trial
counsel not to be call Mr. Boyd as a defense witness.

Trial counsel made strategic decisions as to which witnesses to call or not call and
which to cross-examine or not cross-examine, based upon the information that was
available to him, the circumstances of the case, and whether those witnesses could
provide testimony helpful or damaging to Rosser’s defense. Trial counsel’s conduct was
not deficient and Rosser was not prejudiced by trial counsel’s performance

Rosser has not established that counsel’s conduct was deficient or that he suffered

any actual prejudice thereof. This claim is without merit.

 

95 April 30, 2015 Trial Transcript, at pgs. 174-178.
96 April 30, 2015 Trial Transcript, at pgs. 174-178.

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Claim IV: Due to Trial Counsel’s Ineffectiveness Defendant Was Prevented
from A_ss¢:t'tint'l a (;laln_ol' Self-Defense

Rosser claims that counsel was ineffective for not Seeking to sever the robbery
charges from the assault charge, because he wanted to testify about the assault charges
and not about the robbery charges. Rosser claims that the failure not to seek severance of
the robbery charges from the assault charges stemmed from trial counsel’s failure to
investigate the case, which ultimately prevented him from raising a self-defense claim.

As discussed in Claim ll, counsel believed that a motion to sever the robbery
charges from the assault charges would be unsuccessful since the two sets of charges
were inextricably intertwined He also determined that for tactical purposes all the
charges should be presented in one trial at the Same time.

ln his Affidavit in response to Rosser’s Rule 61 motion, trial counsel further
represents that the evidence did not support a self-defense claim for the assault charges
justifying the use of deadly force against Maddrey.97 First, Rosser never admitted to
shooting Maddrey. Second, there was no evidence that Maddrey was in possession of
any type of weapon when he was shot, or that he was the aggressor in the confrontation98
A self-defense claim would not have been available to Rosser. Even assuming that a
motion to sever the robbery case from the assault case was filed and granted, and Rosser
pursued two separate defense strategies and admitted to shooting Maddrey in self-
defense, he is unable to demonstrate a reasonable probability of a different outcome.

Other than offering his own anticipated testimony, Rosser has not identified any

evidence that would support a self-defense claim or any witness able to corroborate that

 

97 Superior Court Docket No. 102-lanuary 3, 2018 Affidavit of Trial Counsel, at * 4.
98 Superior Court Docket No. 102-lanuary 3, 2018 Affidavit of Trial Counsel, at * 4.

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Maddrey possessed a weapon or was otherwise an aggressor in the confrontation that
would justify the use of deadly force. Based on his assessment of the evidence, trial
counsel did not believe a self-defense strategy had any merit.

Moreover, the record reflects that Rosser never once indicated any desire to
testify to trial counsel. The court engaged in a colloquy with Rosser about his right to
testify and he responded that he would not testify.99 Rosser represented to the court that
it was his decision and his decision alone and that no one else could make that decision
for him.100 Rosser represented to the court that he discussed both options with trial
counsel and that it was his decision not to testify.1°1 The record is clear that Rosser
exercised his right to not testify and he did not raise any concerns with the court that trial
~counsel was impeding his ability to choose.

Although Rosser asserts that he was unable to testify unless the cases were
severed, the scope of the State’s cross-examination would have been limited to issues
raised during direct examination As such, he would not have needed to testify regarding
the robbery case unless the door was opened by the defense.

ln light of Rosser’s colloquy asserting that he did not wish to testify, the unlikely
success of a motion for severance, and trial counsel’s assertions that he did not believe a
severance motion had merit and that it would have conflicted with their chosen defense
strategy, Rosser’s claim is without merit. Rosser has not demonstrated that the defense
strategy chosen by trial counsel was deficient in any respect or that he suffered actual

prejudice as a result thereof.

 

99 April 30, 2015 Trial Transcript, at pgs. 175-178.
100 Id
101 Id

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Claim V: Trial Counsel Was Ineffective for Failing
to RL'L\_lest a Missi_ng Evidence Instruction

Initially, Rosser claimed that the court erred for not given a missing evidence
instruction based on the fact that the stolen pack of cigarettes taken from Buchanan had
not been collected as evidence. This claim would be procedurally barred under Delaware
Superior Court Criminal Rule 61(i)(3), since it was not previously asserted in the
proceedings leading to the judgment of conviction

ln subsequent submissions, Rosser re-couched this claim as an ineffective
assistance of counsel claim and contended that trial counsel was ineffective for failing to
request a missing evidence instruction based on the fact that the stolen pack of cigarettes
taken from Buchanan had not been collected as evidence. Ineffective assistance of
counsel claims are not procedurally barred because a Rule 61 motion is the appropriate
vehicle for raising such claims.102

The pack of cigarettes allegedly stolen from Buchanan was never recovered by
law enforcement and therefore never in the custody of the State to be lost or destroyed.103
Buchanan claimed that Rosser threw the stolen cigarettes out of his car window when he
fled from the crime scene. Buchanan claimed that he saw the cigarettes in the roadway,
however, the police never collected them as evidence.

Trial counsel states that the failure to collect the pack of cigarettes only evidenced

“a shoddy police investigation”, but not that the State lost or destroyed any evidence, and

 

102 See, Malin v. State, 2009 WL 537060, at *5 (Del.Super.); Desmond v. State, 654 A.2d 821, 829 (Del.

1994)
105 Superior Court Docket No. 102-lanuary 3, 2018 Affidavit of Trial Counsel, at * 5.

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he did not believe this fact pattern Warranted a missing evidence instruction, so he did not

request one.104

Had trial counsel believed a missing evidence instruction pursuant to Deberrjy v.
State105and Lolly v. State106was warranted, to be successful, he would have needed to
prove that the material was subject to disclosure under Superior Court Criminal Rule 16
or Brady v. Maryland and that the government had a duty to preserve the material.107 ln
evaluating a missing evidence claim following conviction, the court must consider the
degree of negligence or bad faith involved, the importance of the lost evidence and the
sufficiency of the other evidence adduced at trial to sustain the conviction.108

ln the subject action, trial counsel did not recall Rosser ever raising the issue with
him, but even if he had, trial counsel does not believe that he would have requested a
missing evidence instruction, as he had no reason to believe that the cigarettes would
have been beneficial to Rosser’s defense, they were never in the State’s custody to be
destroyed or lost, and the case against Rosser was overwhelming.109

Whether or not law enforcement was negligent in not collecting the pack of
cigarettes is ultimately immaterial, as there is no reason to believe that the State’s
collection of the cigarettes would have been beneficial to Rosser or had any impact on the
outcome of the trial.

Rosser claims that the “cigarettes were central and important in establishing the

element of the crime,” without which there could be no conviction Rosser appears to be

 

104 Superior Court Docket No. 102-lanuary 3, 2018 Affidavit of Trial Counsel, at *5.

'°5 457 A.2d 744 (Del. 1983).

196 611 A.2d 956 (Del. 1992).

1°7 Deberry, 457 A.2d at 750; Lolly, 611 A.2d at 961.

108 Deberry, 457 a.2d at 752.

109 Superior Court Docket No. 96- Rule 61 Counsel’s Motion to Withdraw, at pg. 27-28.

23

under the mistaken impression that if he was not in possession of the cigarettes, the State
could not establish that a theft was committed Rosser does not seem to understand that it
was the taking of the pack of cigarettes that constitutes the crime of theft, a requisite to
establishing robbery.110

Buchanan testified that the cigarettes were taken and then discarded almost
immediately thereafter. Because it is the act of taking the cigarettes that constituted the
crime, the fact that they were still at the scene, assuming law enforcement had found and
collected them, had no impact on the State’s case against Rosser.

If the cigarettes had been located and collected at the scene, it would not have
diminished the evidence of theft that was presented to the jury or undermined Buchanan’s
testimony, . lt would only have corroborated Buchanan’s testimony that he believed
Rosser discarded the cigarettes while driving away from the scene.

The record does not reveal whether law enforcement was even aware that the
pack of cigarettes was at the scene. lt is not established that it was negligent on the part
of both law enforcement or the State to not preserve the evidence. However, regardless
of whether the cigarettes were in a location that made it negligent for law enforcement to
not collect them, Rosser has not established that the collection of the pack of cigarettes
would have been beneficial to his case or that the outcome of the trial was affected in any
way by the failure to collect it.

Even if the cigarettes had been recovered by the State, there is no reasonable
likelihood that it would have been standard law enforcement protocol to conduct
fingerprint and/or DNA testing on the cigarette packaging, that the material would have

been conducive to such types of testing, that the results would have been favorable to

 

110 11 Del. C_ §§ 832 and 831.

24

Rosser, or that the State would have even believed testing to be necessary and requested
it. Assuming the packaging of the cigarettes could have and would have been tested, and
the results did not produce fingerprints or DNA that could be matched to Rosser, those
results would not necessarily amount to exculpatory evidence. There are any number of
possibilities outside of factual innocence as to why no match would be made, such as
insufficient amounts of DNA recovered, the lifting of only partial fingerprints, or material
not able to easily capture and preserve DNA or fingerprints

The record does not support that the missing evidence was central to the case, was
important to establishing the elements of the crime or had an effect on the jury’s decision
to convict.111 No prejudice from the missing evidence can be demonstrated This claim is
without merit. .

Claim VI: There Was Insufficient Evidence to Sustain the Conviction.

Rosser claims that there was insufficient evidence to support his convictions.
After reviewing the record, the Delaware Supreme Court on direct appeal already held
that the State presented sufficient evidence to meet its burden of proving each charge
beyond a reasonable doubt. This claim was already raised, considered, and rejected by
the Delaware Supreme Court on direct appeal.112
113

This issue having already been fully adjudicated is now procedurally barred

Rosser concedes that this claim is procedurally barred under Rule 61(i)(4) as a formerly

 

111 See, Deberry, 457 A.2d at 752-753(when analyzing prejudice, the court should consider, among other
things, the centrality of the evidence to the case and its importance in establishing the elements of the
crime).

112 Rosser v. State, 2016 WL 1436604, *4 (Del.).

115 Superior Court Criminal Rule 61(1)(4).

25

adjudicated claim and that it lacks merit.114 Rosser appears to have withdrawn and/or
waived this claim.115
Claim VII: This Court Should Consider Cl_lmulative Preiudice.

Rosser claims that he was prejudiced by trial counsel’s cumulative errors. When
there are several errors in a trial, a reviewing court must weigh the cumulative impact of
the errors to determine whether the defendant was deprived of his right to a fair trial.116
Here, because Rosser’s individual claims of error are without merit, this form of relief is
not available to him. Rosser was not deprived of his right to a fair trial on the basis of
cumulative error.

EVIDENTIARY HEARING IS DENIED.

Rosser’s request for an evidentiary hearing is denied _Following a full,
comprehensive and thorough review of the evidentiary record, Rosser’s claims were
either reasonably discounted as not supported by the record or not material to a

determination of Rosser’s claims. lt does not appear that an evidentiary hearing will aid

in the resolution of this motion and is denied

CONCLUSION
Rosser has failed to establish that his trial counsel was deficient in any regard or
that he suffered actual prejudice as a result thereof. The court has reviewed the record
carefully and has concluded that Rosser’s Rule 61 motion is without merit and devoid of

any other substantial claims for relief. 'l`he court is also satisfied that Rosser’s Rule 61

 

114 Opposition Motion, pgs. 7, 14.
115 See, Superior Court Docket No. 100, Rosser’s Motion in Opposition of Counsel’s Motion to Withdraw,

pg. 14.
116 Wright v. State, 405 A.2d 685, 690 (Del. 1979).

26

counsel made a conscientious effort to examine the record and the law and has properly

determined that Rosser does not have a meritorious claim to be raised in his Rule 61

motion

For all of the foregoing reasons, Rosser’s Motion for Postconviction Relief should

be denied and Rule 61 counsel’s motion to withdraw should be granted

IT IS SO RECOMMENDED.

   

Comt"riissionet/Lynne M. Parker

oc: Prothonotary
cc: Peter W. Veith, Esquire
Mr. Marcus Rosser

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