        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,                            )
                                              )
                                              )
       v.                                     )               I.D. No.       1212003086A
                                              )
                                              )
DEWAYNE MCNAIR,                               )
                                              )
               Defendant.                     )
                                             ORDER

                                 Submitted: May 18, 20201
                                 Decided: August 7, 20202
                                Corrected: August 12, 20203

     Upon Consideration of the Commissioner’s Report and Recommendation on
                  Defendant’s Motion for Postconviction Relief,
                                  ADOPTED.

        Upon Consideration of Defendant’s Appeal from the Commissioner’s
    Report and Recommendation on Defendant’s Motion for Postconviction Relief,
                                   DENIED.

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

Christopher S. Koyste, Esquire of Law Office of Christopher Koyste, LLC,
Wilmington, Delaware. Attorney for Defendant.

MEDINILLA, J.
1
  The Court reviews Defendant’s submission of May 18, 2020 as a supplement to his Motion for
Postconviction Relief, where he asks this Court “look at [his] entire case, from the police affidavit
to the end of trial[,]” requesting to be “released[.]” Defendant’s Motion for Modification of
Sentence, State of Delaware v. DeWayne McNair, ID No. 1212003086A, D.I. 89 (Del. Super. Ct.
May 18, 2020) [hereinafter the Court will refer to docket numbers].
2
  The judicial emergency declaration due to the COVID-19 pandemic, “[was] extended for another
30 days effective July 8, 2020 . . . .” See ADMINISTRATIVE ORDER NO. 8 EXTENSION OF JUDICIAL
EMERGENCY (Del. July 6, 2020).
3
  This version corrects footnote 44, previously listed as footnote 43.
                                                 1
       AND NOW TO WIT, this 7th day of August, 2020, upon consideration of

Defendant, DeWayne McNair’s (“Defendant”) Motion for Postconviction Relief,

the Commissioner’s Report and Recommendation, Defendant’s Appeal from the

Commissioner’s Report, the State’s Response to Defendant’s Appeal, Defendant’s

Supplemental Filing in Closing, the sentence imposed upon Defendant, and the

record in this case, it appears to the Court that:

                 I.    FACTUAL AND PROCEDURAL BACKGROUND4

       1.     Defendant is a declared habitual criminal offender. In the criminal

justice system since 1998, he has a violent criminal history that primarily involves

drugs and firearms.5 Two separate juries heard evidence that forms the bases of this

Motion.

       2.     The evidence established that on December 5, 2012, Defendant was

driving a rental car when he was stopped by Wilmington Police at 8th and Spruce

Street in Wilmington. He was the only occupant in the car. Officers took him into

custody and his vehicle was driven back to the Wilmington Police Department.

During an administrative search, police discovered a loaded semi-automatic


4
  This Court’s recitation is based on the Defendant’s Sentencing Transcript, all of Defendant’s
pleadings as they relate to his Amended Motion for Postconviction Relief, the State’s
corresponding responses, the Evidentiary Hearing Transcript, the Commissioner’s Report and
Recommendation, Defendant’s Appeal, and the State’s Response thereto.
5
  Defendant’s prior convictions included Possession with Intent to Deliver Heroin (1998), Robbery
First Degree (2001), Possession of a Firearm During Commission of a Felony (2001), Assault
Second Degree (2001), Possession with Intent to Deliver Heroin (2008), CCDW (1998), and
CCDW (1999).
                                               2
handgun and a men’s jacket containing Defendant’s identification card under the

front passenger seat.     When questioned, Defendant stated he had cocaine and

removed a clear sandwich bag containing suspected crack cocaine and $231 in cash.

He told the police that he had just stolen the drugs from an alleyway. It was

determined he was in possession of approximately 6 grams of cocaine, 5.38 grams

found in a clear-knotted plastic sandwich bag on his waistband and .82 grams

contained in seven smaller Ziploc baggies, commonly referred to as “dime bags”

intended for sale.

       3.     On January 22, 2013, Defendant was indicted on the charges of Drug

Dealing, Possession of a Firearm During the Commission of a Felony (“PFDCF”),

Possession of a Deadly Weapon by a Person Prohibited (“PDWBPP”), Carrying a

Concealed Deadly Weapon (“CCDW”), and Driving without a Valid License. 6 The

PDWBPP charge was severed from the other charges for trial. 7

       4.     On November 22, 2013, following a three-day Superior Court jury trial,

a jury returned guilty verdicts for Drug Dealing and PFDCF. 8 Defendant was

acquitted on the CCDW charge.           On January 8, 2014, a separate jury found

Defendant not guilty of the PDWBPP charge.




6
  Indictment, True Bill Filed, D.I. 2.
7
  Defendant’s Motion for Relief from Prejudicial Joinder, D.I. 16. On November 19, 2013, the
State entered a nolle prosequi for the charge of Driving without a Valid License.
8
  Jury Trial Held, D.I. 22.
                                             3
       5.      On May 13, 2014, Defendant filed a Motion for New Trial arguing

violations of Brady and misconduct at the Office of the Chief Medical Examiner

(“OCME”) as it relates to chain of custody.9 Although his motion was denied,10 the

Court ordered the drugs be re-tested. The drugs re-tested positive for cocaine.

       6.      On November 18, 2016, the State’s moved to declare Defendant a

habitual offender11 and Defendant was sentenced as such. The State had filed a

previous Motion to Declare Defendant a Habitual Offender under § 4214(b),12

where Defendant faced a mandatory minimum sentence of life imprisonment.

Because of changes in the law eliminating the provisions of § 4214(b), the State

refiled to have Defendant sentenced as a habitual offender requesting habitual

offender status only as to the firearm charge, which subjected Defendant to a

minimum mandatory sentence of twenty-five years.13 The Court followed the

recommendation of this minimum mandatory sentence and imposed a total of thirty-

five years at Level V, suspended after twenty-five years, for transitioning levels of

probation.14



9
  Defendant’s Motion for New Trial, D.I. 27. J. Carpenter denied Defendant’s motion, but ordered
for a retesting of the drugs at issue in Defendant’s case, that were returned yielding positive tests.
10
   Order Denying Defendant’s Motion for New Trial, D.I. 46.
11
   State’s Motion to Declare Defendant an Habitual Offender, D.I. 50; Order Granting State’s
Motion to Declare Defendant a Habitual Offender, D.I. 50.
12
   See Transcript of Sentencing – November 18, 2016, D.I. 53; see also 11 Del. C. § 4214.
13
   See Transcript of Sentencing – November 18, 2016, D.I. 53.
14
   Sentence Order, D.I. 51. Defendant received an additional two-year probation sentence for Drug
Dealing.
                                                  4
       7.     On December 7, 2016, Defendant filed a notice of appeal. On October

20, 2017, the judgment of the Superior Court was affirmed. 15

       8.     On December 8, 2017, Defendant timely filed pro se motions for

Postconviction Relief and for the Appointment of Counsel. 16 Defendant’s Motion

for Appointment of Counsel was granted.17 On August 7, 2018, through assistance

of counsel, Defendant filed an Amended Motion for Postconviction Relief. 18 On

November 16, 2018, the State filed its Response.19               On December 21, 2018,

Defendant filed a Reply.20

       9.     The Court referred Defendant’s Amended Motion for Postconviction

Relief to a Superior Court Commissioner for proposed findings of fact and

conclusions of law under Delaware Superior Court Criminal Rule 62 (a)(5). 21 On

May 7, 2019, Commissioner Parker held an evidentiary hearing and heard testimony

from trial and appellate counsel.




15
   Mandate filed from Supreme Court: Superior Court Judgment Affirmed, D.I. 62.
16
   Defendant’s Motion for Postconviction Relief, D.I. 63; Defendant’s Motion for Appointment of
Counsel, D.I. 64.
17
   Letter Granting Defendant’s Motion for Appointment of Counsel, D.I. 67.
18
   Amended Motion for Postconviction Relief, D.I. 69 [hereinafter “Def.’s Mot.”].
19
   State’s Response to Defendant’s Amended Motion for Postconviction Relief, D.I. 77.
20
   Defendant’s Response to the State’s Response, D.I. 78.
21
   See 10 Del. C. § 512(b)(1)(b) (2013 & Supp. 2016); DEL. SUPER. CT. CRIM. R. 62(a)(5) (Under
Delaware Superior Court Rule 62(a)(5), the Court may refer to a Superior Court Commissioner
case-dispositive motions, including postconviction relief motions, and the Commissioner must
submit “proposed findings of fact and recommendations for the disposition, by a judge, of any
such matter.”).
                                              5
      10.    On October 29, 2019, the Commissioner filed a report recommending

that Defendant’s Amended Motion for Postconviction Relief should be denied

(“Commissioner’s Report”). 22

      11.    After the Commissioner issues a report, “any party may serve and file

written objections” to the report within ten days.23        On November 12, 2019,

Defendant filed a timely appeal. 24 On March 21, 2020, the State filed a response to

Defendant’s appeal. 25 On May 18, 2020, Defendant submitted an additional letter

reiterating prior arguments raised in his Rule 61 motion that the Court accepted as a

supplement.26

                             II.   STANDARD OF REVIEW

      12.    Under Rule 62(a)(5), the Commissioner, to which the Court referred

the motion, is permitted to conduct hearings and “submit to a judge of the Court

proposed findings of fact and recommendations for the disposition, by a judge,” of

any such motion. 27 The Court “may accept, reject or modify, in whole or in part, the

findings of fact or recommendations made by the Commissioner.”28                Having



22
    Commissioner’s Report and Recommendations and Order, D.I. 83 [hereinafter “Comm’r
Report”].
23
   DEL. SUPER. CT. CRIM. R 62(a)(5)(ii).
24
    Defendant’s Appeal from Commissioner’s Finding of Fact, D.I. 84 [hereinafter “Def.’s
Appeal”].
25
   State’s Response to Defendant’s Appeal, D.I. 88 [hereinafter “State’s Resp.”].
26
   Defendant’s Motion for Modification of Sentence, D.I. 89.
27
   DEL. SUPER. CT. CRIM. R. 62(a)(5).
28
   DEL. SUPER. CT. CRIM. R 62(a)(5)(ii).
                                           6
received timely objections to the Commissioner’s recommendations, the Court now

makes a de novo review of “those portions of the report” to which an objection is

made.29

                                       III.    DISCUSSION

       13.    Superior Court Criminal Rule 61 is the exclusive remedy for persons

“in custody under a sentence of this court seeking to set aside the judgment of

conviction . . . .”30 This Court “must first consider the procedural requirements of

Rule 61 before addressing any substantive issues.”31 The procedural “bars” of Rule

61 are:        timeliness,32 repetitiveness,33 procedural default,34 and former

adjudication. 35

       14.    Defendant’s Rule 61 Motion constitutes a timely first motion for

postconviction relief. Accordingly, his Motion is reviewed on the merits. Defendant


29
   DEL. SUPER. CT. CRIM. R 62(a)(5)(iv).
30
   DEL. SUPER. CT. CRIM. R. 61(a)(1). See, e.g., Warnick v. State, 158 A.3d 884, 2017 WL
1056130, at *1, n.5 (Del. Mar. 30, 2017) (TABLE) (citing Miller v. State, 157 A.3d 190, 2017 WL
747758 (Del. Feb. 24, 2017) (TABLE)) (denying Rule 35(a) motion attacking sufficiency of
evidence in indictment to which defendant pleaded guilty; defendant’s “challenge [of] his
indictment is outside the scope of Rule 35(a)” and was limited to Rule 61).
31
   Bradley v. State, 135 A.3d 748, 756-57 (Del. 2016) (citing Younger v. State, 580 A.2d 552, 554
(Del. 1990)). See DEL. SUPER. CT. CRIM. R. 61(i) (setting forth Rule 61’s procedural bars).
32
   DEL. SUPER. CT. CRIM. R. 61(i)(1). See, e.g., Evick v. State, 158 A.3d 878, 2017 WL 1020456,
at *1 (Del. Mar. 15, 2017) (TABLE) (affirming denial of Rule 61 motion as untimely when filed
more than two years after conviction became final).
33
   DEL. SUPER. CT. CRIM. R. 61(i)(2). See, e.g., Walker v. State, 154 A.3d 1167, 2017 WL 443724,
at *1-2 (Del. Jan. 17, 2017) (TABLE) (denying defendant’s third postconviction relief motion as
repetitive; “Rule 61 provides a limited window for judicial review, especially upon a repetitive
motion.”).
34
   DEL. SUPER. CT. CRIM. R. 61(i)(3).
35
   DEL. SUPER. CT. CRIM. R. 61(i)(4).
                                               7
raises three ineffective assistance of counsel claims alleging that: (1) trial counsel

should have challenged the sufficiency of the evidence presented at trial by seeking

a motion for judgment of acquittal; (2) trial counsel should have investigated and

presented statements made in Defendant’s TASC Report, and (3) appellate counsel

should have moved for insufficiency of the evidence to sustain the conviction.

       15.    To succeed on his ineffective assistance of counsel claims as they relate

to trial counsel, Defendant must demonstrate: (1) “that trial counsel’s performance

was objectively unreasonable and that the defendant was prejudiced as a result[;]” 36

and (2) that if counsel was deficient, that there was a “reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.”37 Mere allegations of ineffectiveness are not enough.38 Defendant must

make and substantiate concrete allegations that overcome the strong presumption

that counsel’s conduct fell within a wide range of professional assistance.39 There

is a strong presumption that a defense counsel’s conduct constituted sound trial

strategy.40




36
   Sykes v. State, 147 A.3d 201, 211 (Del. 2015) (citing Strickland v. Washington, 466 U.S. 668,
694 (1984)).
37
   Strickland v. Washington, 466 U.S. 668, 694 (1984).
38
   Younger v. State, 580 A.2d 552, 556 (Del. 1990).
39
   See Salih v. State, 2008 WL 4762323, at *1 (Del. 2008); see also Albury v. State, 551 A.2d 53,
59 (Del. 1988).
40
   Strickland, 466 U.S. at 694.
                                               8
       16.     As to appellate counsel, Defendant must demonstrate “that his counsel

was objectively unreasonable in failing to find arguable issues on appeal – that is,

that counsel unreasonably failed to discover nonfrivilous issues and to file a merits

brief raising them.”41        In challenging the competency of appellate counsel,

Defendant must make a “showing that a particular nonfrivilous issue was clearly

stronger than issues that counsel did present[.]” 42

       17.     Additionally, Defendant must also establish that that any allegedly

deficient performances of counsel resulted in prejudice.43 As to both trial and

appellate counsel, Defendant fails to make such showing.

                  A. Insufficiency of the Evidence

       18.     Defendant contends that had trial counsel moved for judgment of

acquittal on the basis of insufficiency of the evidence as to the element of possession,

such challenge would have been successful. He reiterates his argument that the

presence of the firearm in the vehicle at the time of arrest was circumstantial

evidence and the mere proximity to the contraband in the vehicle was not enough to

prove possession.44 This Court disagrees.


41
   Neal v. State, 80 A.3d 935, 946 (Del. 2013) (quoting Smith v. Robbins, 528 U.S. 259, 285
(2000)).
42
   Id. at 946.
43
   Id. (quoting Smith v. Robbins, 528 U.S. 259, 285 (2000); see generally Strickland, 466 U.S. 668
(1984).
44
    Def.’s Appeal ¶ 15 (quoting United States v. Grubbs, 506 F.3d 4343, 439 (6th Cir. 2007)
(quoting United States v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007))) (He argues that that
“[p]resence alone near a gun . . . does not ‘show the requisite knowledge, power or intention to
                                                9
       19.     As noted in the Commissioner’s Report, the extensive record supports

that a reasonable trier of fact could find Defendant guilty of possession.45 Even

considering Defendant’s arguments on appeal, while it is true that some courts have

ruled that proximity to firearm alone is insufficient proof to establish possession,46

the facts here are distinguished from Defendant’s cited cases.47

       20.     Defendant was the sole occupant and operator of a rental vehicle where

contraband was found on his person and a firearm under the passenger seat with a

men’s jacket and Defendant’s identification. The Delaware Supreme Court has held

that it is appropriate to presume the custodian of an automobile “to have dominion

and control of contraband found in the automobile; and that if . . . such dominion

and control may be found to be a conscious dominion and control, the evidence is

sufficient to warrant the conclusion of ‘possession’ as to the custodian.”48



exercise control over’ the gun to prove constructive possession.”).
45
   Comm’r Report at 9.
46
   See United States v. Jenkins, 90 F.3d 814 (3d Cir. 1996) (reversing defendant’s conviction where
defendant was at an acquaintance’s house where drugs were found, holding a reasonable jury may
not infer possession beyond a reasonable doubt from defendant’s physical distance from the drugs
alone.); see also Holden v. State, 305 A.2d 320 (Del. 1973) (overturning defendant’s convictions
because defendants were only passengers in the vehicle where contraband was found.); see also
Crawley v. State, 235 A.2d 282 (Del. 1967) (finding that evidence of mere proximity was not
enough because defendant was the passenger in a vehicle allegedly containing stolen goods.).
47
   Notably, Defendant’s reliance on United States v. Grubbs is misplaced, distinguishable, and
does not favor Defendant, where the Sixth Circuit Court of Appeals acknowledges that “if a
defendant is found with a firearm under the seat of the car he is driving, and he is the lone passenger
of the car,” less evidence may be required “to infer that he knowingly has the power and intention
to exercise dominion and control over the discovered firearm.” United States v. Grubbs, 506 F.3d
439-40, (6th Cir. 2007).
48
   Holden, 305 A.2d at 320; see generally Jenkins, 90 F.3d 814; see generally Crawley, 235 A.2d
282.
                                                 10
        21.    As to the claim that counsel should have moved for judgment of

acquittal on Drug Dealing, Defendant reasserts that that State’s drug expert,

Detective Janvier, was unconvincing and that “it is clear that no rational trier of fact

could find [Defendant] guilty beyond reasonable doubt of Drug Dealing.”49 This

Court echoes the sentiments expressed in the Commissioner’s Report as to the

logical inferences that could have been drawn by the jury given the record before

it.50

        22.    For this reason, trial counsel was not objectively unreasonable when he

chose not to file a motion for judgment of acquittal, where there was legally

sufficient evidence to justify a conviction. 51 Similarly, appellate counsel was not

objectively unreasonable for failing to challenge the sufficiency of the evidence on

the facts of this case. In accord with the Commissioner’s Report neither motions for

judgment of acquittal nor appellate motion for insufficiency of evidence would have

been successful.




49
   Def.’s Appeal ¶ 24.
50
    Comm’r Report at 10. See Evidentiary Hearing Transcript at 31:8-16-32:-2 (Counsel for the
State argued that “it would be reasonable for a finder of fact to find that the defendant was aware
of the firearm, that the defendant was a drug dealer who possessed cocaine with the intent to deliver
it, and that the defendant possessed that firearm which was in arm’s reach at the time he also
possessed the drugs during the traffic stop . . . .”) [hereinafter “Evidentiary Tr.”].
51
   Evidentiary Hearing Tr. at 6:23-7:1-8 (Defendant’s trial counsel stated, “I elicited information
that this was for personal use. I did not feel the Court was going to say that there was no kind of
issue for the fact finder. And I did not think – the State’s expert witness had testified, in my
professional opinion, that this was drug dealing. I did not feel that the motion for judgment of
acquittal was going to be successful.”).
                                                11
                   B. TASC Report

       23.     Defendant’s final argument is that trial counsel’s failure to admit

evidence of a TASC Report warrants postconviction relief. He argues the report

would have demonstrated Defendant possessed the drugs for personal use versus an

intent to distribute. He concedes that the statements contained in the TASC Report

are hearsay, yet claims they fall under two hearsay exceptions: D.R.E. 803(6) and

807.

       24.     Defendant argues that the TASC report is a business record under

D.R.E. 803(6).52 He presents no case law to support his argument. Regardless, the

report is inadmissible hearsay because it contained Defendant’s self-serving

inadmissible statement.53 Defendant elicited the statements made after his arrest.

His self-serving hearsay statement would not independently qualify as an exception.

       25.     The admissibility ruling is the same under D.R.E. 807.54 For a hearsay

statement to be held as admissible under this exception, “there [must be] a guaranty

of trustworthiness associated with the proffered hearsay statement. . . .”55 The self-


52
   See D.R.E. 803(6).
53
   Demby v. State, 695 A.2d 1152, 1162 (Del. 1997) (“If double hearsay is being offered into
evidence, each aspect must qualify independently as an exception to the hearsay rule[.]”); see also
Evidentiary Tr. at 8:9-13,16-21 (Trial counsel stated “I think the TASC Report itself is not
admissible. It’s hearsay. And I would not be able to . . . get it into evidence. I think I would need
a witness to do that.” Even as to using the TASC Officer as a witness, he stated “I think that her
testimony is also hearsay . . . . ”).
54
   See D.R.E. 807.
55
   Stigliano v. Anchor Packing Co., 2006 WL 3026168, at *1 (Del. Super. Ct. Oct. 18, 2006) (citing
Odaho v. Wright, 110 S.Ct. 3139, 3147 (1990)); see Purnell v. State, 979 A.2d 1102, 1107 (Del.
                                                12
serving statement does not satisfy the guarantee of trustworthiness requirement,56

and does not qualify as an exception under D.R.E. 807.

         26.   The TASC Report would not have been admissible under either

exception. Therefore, the failure of counsel to attempt to offer any statements

contained within cannot form the basis of a viable ineffective assistance of counsel

claim.

         27.   For the foregoing reasons, the Court finds that Defendant fails to meet

his burden to demonstrate objective unreasonableness and prejudice as required

under Strickland and Neal, as to both trial and appellate counsel performances.

         28.   The Court accepts, in whole, the Commissioner’s Report and

Recommendation. 57 Defendant received effective assistance of counsel at both the

trial and appellate stages of his case.




2009).
56
   State’s Resp. ¶ 13 (citing Cabrera v. State, 840 A.2d 1256, 1268 (Del. 2004)) (It is a “[a] self-
serving statement given by a defendant who is electing not to testify, with a clear motivation to
lie,” therefore it “lacks sufficient ‘guaranty of trustworthiness’ and does not satisfy the necessarily
narrow construction of the residual exception.”).
57
   See DEL. SUPER. CT. CRIM. R. 62(a)(5)(iv) (“A judge may accept, reject, or modify, in whole or
in part, the findings of fact or recommendations made by the Commissioner.”).
                                                 13
      29.     After careful consideration and de novo review, the Court ADOPTS

the Commissioner’s Report and Recommendation for the reasons stated above.

Defendant’s    Appeal   from   the     Commissioner’s   Finding   of   Fact   and

Recommendations is DENIED.

      IT IS SO ORDERED.



                                                  /s/Vivian L. Medinilla
                                                  Vivian L. Medinilla
                                                  Judge
oc:   Prothonotary
cc:   Defendant
      Christopher S. Koyste, Esquire
      Department of Justice
      Investigative Services Office




                                        14
