lN TI-IE SUPREME COURT OF THE STATE OF DELWARE

Plaintiff Below,
Appellee.

BERNARD ELLERBE, §
§ No. 453, 2016
Defendant Below, §
Appellant, § Court Below_Superior Court of the
§ State of Delaware
v. §
§ Cr. lD No. 1406020386
STATE OF DELAWARE, §
§
§
§

Submitted: March 2, 2017
Decided: May 8, 2017

Before VALIHURA, VAUGHN, and SEITZ, Justices.
O R D E R

This 8"‘ day of May 2017, upon consideration of the parties’ briefs, the
appellant’s post-briefing submission filed on March 2, 2017, and the record on
appeal, it appears to the Court that:

(l) The appellant, Bernard Ellerbe, filed this appeal liom the Superior
Court’s order of August 2, 2016, denying his first motion for postconviction relief
under Superior Court Criminal Rule 61 .' We conclude there is no merit to the appeal
and affirm the Superior Court’s judgment

(2) On June 25, 2014, Ellerbe was stopped after police observed him

 

‘ stare \-. Elierb@, 2016 wL 4119363 (Del. super. Aug. 2, 2016).

engage in an apparent hand-to-hand drug transaction through his car window.
Ellerbe sped away when the police approached his car, and in the high-speed evasion
that ensued, Ellerbe wrecked his car. When removing Ellerbe from the wreckage,
the police found more than 260 individual glassine bags of heroin in Ellerbe’s lap
and nearly 512,000 in his pockets.

(3) Ellerbe was indicted for several drug offenses and on charges of
reckless endangering, reckless driving, and disregarding a police signal. The drugs
seized from Ellerbe were sent to a Drug Enforcement Administration (“DEA”)
laboratory where they were analyzed by a forensic chemist on December 17, 2014.

(4) Ellerbe went to trial in late January 2015. A week before trial, an
official from the DEA disclosed to the prosecutor that, on July l, 2014, the DEA’s
Board of Professional Conduct issued a two-day suspension without pay to the
forensic chemist who analyzed the drugs in Ellerbe’s case in December 2014. The
disciplinary sanction arose from the forensic chemist’s alleged violation of a DEA
safety protocol when handling drug evidence in a case in November 2013. Because
the forensic chemist was a key witness in the State’s case against Ellerbe and
evidence about the safety violation, if permitted by the court, could be used by the

defense to impeach the chemist at trial, the prosecutor informed defense counsel

hit

about the disciplinary sanction.2

(5) Under Delaware Uniform Rule of` Evidence 403 (“DRE 403”), before
evidence can be used to impeach the credibility of a witness, the Superior Court must
determine if the probative value of the evidence outweighs its prejudicial effect.3 To
make the determination under DRE 403 in Ellerbe’s case, the trial judge conducted
voir dire of the chemist, outside the presence of the jury, to determine if Ellerbe’s
defense counsel should be allowed to use evidence of the disciplinary sanction to
impeach the chemist at trial.

(6) During voir dire, the chemist testified that the disciplinary matter arose
from her alleged violation of a DEA safety policy when she neglected to wear a
protective mask when testing a large quantity of cocaine in 2013. The chemist
testified that her appeal from the Board’s decision was still pending before a DEA
appeals official, and that, for the pendency of the disciplinary matter, she continued
examining drug evidence for the DEA and to testify in cases. The chemist further
testified that, if the Board’s decision is upheld by the appeals official, she will
continue in her duties with the DEA, and that there was no allegation that she failed

to follow any protocol in Ellerbe’s case.

 

2 See Gigh`o v. United Smtes, 405 U.S. 150, 153-54 (19'/`2) (holding that the prosecutor’s
nondisclosure of material evidence affecting a witness’ credibility, which goes uncorrected, falls
within the requirements of Brady v. Ma:jv[and, 373 U.S. 83 (1963)).

3 See Del. Unif`. R. Evid. 403 (governing exclusion of relevant evidence on grounds of prejudice,
conh.lsion, or waste of time).

3

(7) At the conclusion of voir dire, defense counsel advised the court and
opposing counsel that he would not be moving to use evidence of the disciplinary
sanction to impeach the chemist because, in counsel’s view, the evidence was not
relevant in Ellerbe’s case. ln this excerpt from the voir dire transcript, the trial judge
agreed with defense counsel’s assessment as follows:

That’s fine, 1 think that’s appropriate after hearing the entirety of it.
Under Rule 403 1 do believe that probative value would be substantially
outweighed by the danger of unfair prejudice in this particular case,
mainly confusing the issues and really trying to have some mini trial of
a personnel matter that hasn’t even been fully determined yet. Ifthere’s
a question as to a circumstance of not following protocol that changed
the weight, the analysis or something like that, it may be more
probative, but in this case, it’s quite frankly not taking a safety
precaution that she should have taken during testing

=l=*=l¢

And as noted through the testimony and cross-examination, even that
matter and whether or not she will be held to some sanction from her
own agency for violating some safety protocol or laboratory protocol
of their own and again, had nothing to do with the validity of the actual
testing, findings or the like, but their own personal safety standard that
they set, then the court might find some greater probative value.

lf not, and l think that the defense is absolutely correct in understanding
that this probably would not lead to anything that is useful, and
therefore I think it is appropriate to be excluded under Rule 403, even
if there was a request to put it in.4

(8) When trial resumed, the chemist took the stand and testified about the

tests she conducted on the drug evidence seized in Ellerbe’s case and the scientific

 

4 Trial Tr. ar 23-25 (Jan. 30, 2015).

method she used to determine that the evidence was heroin with a net weight of 3.8
grams. In relevant part, the chemist explained that, after analyzing 27 of the 262
individual glassine bags and finding that 27 bags contained heroin, she used a
hypergeometric sampling method to determine with 95% accuracy that 90% of the
remaining 235 bags also contained heroin.5

(9) On January 30, 2015, the jury convicted Ellerbe of Drug Dealing,
Aggravated Possession of I-Ieroin, Possession of Drug Paraphernalia, Reckless
Endangering First Degree, Disregarding a Police Offlcer’s Signal, and Reckless
Driving. On May 29, 2015, following a presentence investigation, the Superior
Court sentenced Ellerbe as follows: Drug Dealing and Aggravated Possession"_
twenty-five years at Level V, suspended after fifteen years for ten years at Level IV,
suspended after six months for eighteen months at Level III; Reckless
Endangering_one year and six months at Level V for each of two counts;
Disregarding a Police Officer’s Signal_two years at Level V, suspended for one
year at Level III; Possession of Drug Paraphernalia_ six months at Level V,

suspended for six months at Level ill for Possession of Drug Paraphernalia. All told

 

5 See generally Statc v. Roimdtree, 2015 WL 5461668, at *2 (Del. Super. Sept. 17, 2015)
(explaining that hypergeometric sampling methodology is a mathematical formula that allows a
laboratory to test a portion of a quantity of drugs and, based upon those results, infer certain
conclusions about the untested portion of the drugs. lf a certain number of randomly selected
samples are tested and all test positive, it is probable that most of the remaining items would
likewise test positive if actually tested.)

6 The Drug Dealing and Aggravated Possession convictions merged for purposes of sentencing

5

the sentence imposed eighteen years of unsuspended Level V time. Ellerbe filed a
direct appeal of his convictions but then voluntarily dismissed the appeal to pursue
postconviction relief with the assistance of new privately-retained counsel.

(10) In December 2015 and February 2016, Ellerbe’s privately-retained
postconviction counsel filed a motion and an amended motion for postconviction
relief. The motion, as amended, alleged one claim_that defense counsel’s decision
not to seek to impeach the chemist with evidence of the disciplinary sanction was
ineffective assistance of counsel.

(l 1) To prevail on his ineffective counsel claim, Ellerbe had to show that
defense counsel’s “representation fell below an objective standard of
reasonableness” and that Ellerbe was prejudiced as a result of counsel’s deficient
representation7 To meet the first objective, Ellerbe argued that defense counsel’s
decision to forego using the impeachment evidence was unreasonable because
withholding evidence that the chemist had improperly handled drug evidence in
another case deprived the jury of crucial evidence to evaluate the chemist’s
credibility in Ellerbe’s case. To meet the second objective, Ellerbe argued that
defense counsel’s error was prejudicial because the chemist’s testimony was key to

proving the elements of the most serious drug charges, and if Ellerbe had the

 

7 Strickland \’. Washington, 466 U.S. 668, 687 (1984).
6

opportunity to challenge the chemist’s credibility, there was a reasonable chance the
jury would not have convicted Ellerbe of those charges

(12) Ellerbe’s postconviction motion was referred to the Superior Court
judge who presided over Ellerbe’s trial. The trial judge directed defense counsel to
file an affidavit in response to the allegation of ineffective assistance of counsel and
the State to file a response to the motion. After those pleadings were filed,
postconviction counsel filed a reply.

(l3) By order dated August 2, 2016, the Superior Court denied the
postconviction motion after analyzing the ineffective counsel claim and concluding
it was without merit. The court determined, first, that it was reasonable for defense
counsel to conclude that the chemist’s disciplinary sanction was of little value in
Ellerbe’s case, The violation reflected little about the validity of the testing in the
2013 case, and the violation took place in November 2013 more than a year before
the chemist’s involvement in Ellerbe’s case.

(14) On the question of prejudiee, the court determined that Ellerbe was not
prejudiced by defense counsel’s decision not to impeach the chemist with the
disciplinary sanction. The court concluded that it was unlikely that additional cross-
examination of the chemist would have overcome the other evidence in Ellerbe’s
case, which included the police officers’ visual observations of the drug transaction,

Ellerbe’s high-speed evasion of the police, the large amount of heroin found in

7

Ellerbe’s lap, and the large amount of cash found in his pockets. Moreover, the court
acknowledged its prior determination, at voir dire, that if defense counsel had sought
to impeach the chemist with evidence of the disciplinary sanction, the court likely
would have ruled the evidence inadmissible under DRE 403 because its probative
value was substantially outweighed by the danger of unfair prejudice.

(15) On appeal from the Superior Court’s denial of postconviction relief,
Ellerbe has raised two claims of ineffective assistance of counsel. First, in his
opening brief, Ellerbe claims that his defense counsel’s decision not to use the
impeachment evidence was ineffective assistance of counsel. Second, in his post-
briefing submission, Ellerbe claims that his defense counsel’s failure to challenge
the chemist’s use of the hypergeometric sampling method also was ineffective
Because Ellerbe’s second claim of ineffective assistance was not raised in his
postconviction motion, our review of the claim is limited to plain error.8

(16) The record does not reflect plain error in connection with Ellerbe’s
second claim of ineffective assistance of counsel. First, the record does not reflect,
as Ellerbe claims, that defense counsel failed to challenge the chemist’s use of the
hypergeometric sampling method when analyzing the drugs in Ellerbe’s case,

Rather, the record reflects that defense counsel questioned the chemist on the

 

*‘ Del. supr. Cr. R. 8. See mmp v. Smre, 753 A.zd 963, 971 (Del. 2000) (ciring Warmw-rghr 1».
State, 504 A.2d 1096, 1100 (Del. 1986) providing that plain error is error that is "so clearly
prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial"))).

8

reliability of the hypergeometric method and the accuracy of the chemist’s findings
Second, the chemist testified that the hypergeometric method is considered reliable
by the scientific community, and that she followed normal laboratory procedures
when using the method in Ellerbe’s case. Under DRE 702, a qualified expert need
only testify that any test used as a basis for the expert’s opinion is reasonably relied
upon by experts in her field. " That standard was met here.

(17) As for Ellerbe’s first claim of ineffective assistance of counsel, which
was thoroughly litigated in the postconviction proceeding, after careful
consideration of the parties’ briefs we conclude that the claim is without merit for
the reasons stated in the Superior Court’s order of August 2, 2016. Ultimately, the
Superior Court determined, and we agree, that “[w] ith no specifics offered as to how
the additional cross-examination now suggested would have changed the outcome
of the trial, Ellerbe cannot succeed on a claim of ineffective assistance of counsel.”l"

NOW, THEREFORE, lT IS HEREBY ORDERED that the judgment of the

Superior Court is AFFlRl\/IED.

B THE COURT:

 

 

9 See Del. Unif`. R. Evid. 702 (governing testimony by experts). Santiago v. State, 510 A.2d 488,
490 (1936].
m Supra note l, at *4.

