         IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARCUS ROSSER,                          §
                                        §
       Defendant Below,                 § No. 41, 2019
       Appellant,                       §
                                        § Court Below—Superior Court
       v.                               § of the State of Delaware
                                        §
STATE OF DELAWARE,                      § Cr. ID No. N1407011336
                                        §
       Plaintiff Below,                 §
       Appellee.                        §

                          Submitted: September 20, 2019
                          Decided:   October 28, 2019

Before VALIHURA, SEITZ, and TRAYNOR, Justices.

                                 ORDER

      (1)   The appellant, Marcus Rosser, has appealed the Superior Court’s denial

of his first motion for postconviction relief under Superior Court Criminal Rule 61.

After careful consideration of the parties’ briefs and the record, we affirm the

Superior Court’s judgment.

      (2)   The record reflects that in May 2015, a Superior Court jury found

Rosser guilty of Assault First Degree; two counts of Possession of a Firearm During

the Commission of a Felony; Carrying a Concealed Deadly Weapon; Robbery First

Degree; and Aggravated Possession of a Firearm by a Person Prohibited

(“APFBPP”).     After a presentence investigation, the Superior Court sentenced
Rosser to a total period of forty years of incarceration, to be suspended for probation

after serving eighteen years in prison.

      (3)    The evidence presented at trial reflected that, around 8:00 p.m. on July

13, 2014, Ronald Maddrey encountered Rosser, who was an acquaintance of

Maddrey’s, at a 7-Eleven convenience store in New Castle, Delaware. Rosser was

driving a silver SUV. Maddrey agreed to sell marijuana to Rosser at a different

location. Maddrey and Rosser then drove their vehicles to a nearby apartment

complex. As Maddrey approached Rosser’s SUV, Rosser pulled out a gun and shot

Maddrey in the arm.       During a police interview after the shooting, Maddrey

identified Rosser as his assailant.

      (4)    Later that same evening, a teenager named Tyler Buchanan was outside

a different New Castle convenience store when a man in an SUV beckoned

Buchanan to approach the vehicle. Buchanan did not comply, and he made a rude

hand gesture when the man started to drive away. The man then returned, and as

Buchanan walked toward the vehicle, the man brandished a gun at Buchan and

robbed him of a pack of cigarettes. 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.

      (5)    Shortly after the Buchanan robbery, a police officer observed an SUV

matching the description of Rosser’s SUV near the apartment complex where



                                          2
Maddrey had been shot. The officer stopped the vehicle and arrested Rosser. The

police searched the SUV and seized a revolver with one bullet missing. Both

Maddrey and Buchanan testified at trial and identified Rosser as their assailant.

Rosser did not testify at trial. This Court affirmed on direct appeal. 1

       (6)    Following his conviction, Rosser filed several motions, including a pro

se motion for postconviction relief in which he asserted that his trial counsel

provided ineffective assistance.       The Superior Court appointed postconviction

counsel to represent him.       After reviewing the record, postconviction counsel

concluded that there were no meritorious grounds for relief and moved to withdraw

under Superior Court Criminal Rule 61(e)(7).              After additional submissions,

including an affidavit from trial counsel addressing the claims of ineffective

assistance of counsel, the motion for postconviction relief was referred to a

Commissioner for a report and recommendation under Superior Court Criminal Rule

62.

       (7)    The Commissioner entered a report and recommendation in which she

concluded that Rosser’s motion for postconviction relief was without merit and

recommended that the court deny the motion for postconviction relief and grant

postconviction counsel’s motion to withdraw.2 After de novo review, the Superior


1
  Rosser v. State, 2016 WL 1436604 (Del. Apr. 5, 2016).
2
  State v. Rosser, 2018 WL 6432985 (Del. Super. Ct. Nov. 26, 2018) (Commissioner’s report and
recommendation).


                                             3
Court adopted the Commissioner’s recommendations. 3 Rosser has appealed to this

Court.

         (8)   On appeal, Rosser argues that the Superior Court erred by ruling that

his trial counsel did not provide ineffective assistance by (i) failing to request a

“missing evidence” jury instruction; (ii) stipulating that Rosser was a person

prohibited from possessing a firearm and failing to file a motion to sever the

APFBPP charge from the other charges; and (iii) failing to adequately investigate

the case. To the extent that Rosser has not raised or briefed on appeal other claims

that he presented to the Superior Court, those claims are deemed waived and will not

be addressed by the Court.4

         (9)   We review the Superior Court’s denial of postconviction relief for

abuse of discretion.5 We review de novo constitutional claims, including claims of

ineffective assistance of counsel. 6       In order prevail on a claim of ineffective

assistance of counsel, a defendant must demonstrate that (i) his defense counsel’s

representation fell below an objective standard of reasonableness, and (ii) there is a

reasonable probability that but for counsel’s errors, the result of the proceeding




3
  State v. Rosser, 2018 WL 6721365 (Del. Super. Ct. Dec. 20, 2018).
4
  Murphy v. State, 632 A.2d 1150 (Del. 1993).
5
  Baynum v. State, 211 A.3d 1075, 1082 (Del. 2019).
6
  Id.


                                              4
would have been different. 7           Although not insurmountable, there is a strong

presumption that counsel’s representation was professionally reasonable. 8                         A

defendant must also make concrete allegations of actual prejudice to substantiate a

claim of ineffective assistance of counsel. 9

       (10) First, Rosser argues that trial counsel was ineffective because he did not

request a Lolly instruction based on the State’s failure to collect the stolen cigarette

pack, which the robber tossed into the street after taking it from Buchanan at

gunpoint. A Lolly instruction “tells the jury, in a case where the State has failed to

collect or preserve evidence which is material to the defense, to assume that the

missing evidence would have tended to prove the defendant not guilty.” 10 Rosser

contends that the police officers who investigated the Buchanan robbery negligently

failed to collect the cigarette pack, which might have contained material evidence of

the robber’s identity, in the form of DNA or fingerprints.

       (11) Rosser has not overcome the strong presumption of reasonable

representation or demonstrated actual prejudice concerning this claim, because he


7
  Harris v. State, 2018 WL 3239905, at *2 (Del. July 2, 2018) (citing Strickland v. Washington,
466 U.S. 668, 687-88 (1984)).
8
  Albury v. State, 551 A.2d 53, 59 (Del. 1988).
9
  Younger v. State, 580 A.2d 552, 556 (Del. 1990).
10
   Baynum v. State, 133 A.3d 963, 967 (Del. 2016) (internal quotations omitted). See Deberry v.
State, 457 A.2d 744 (Del. 1983) (holding that the State, including its police agencies, is obligated
to preserve evidence that is material to a defendant’s guilt or innocence and that, when the State
fails in this duty, the defendant is entitled to an inference that the evidence would be exculpatory);
Lolly v. State, 611 A.2d 956 (Del. 1992) (extending Deberry to a claim involving a police failure
to gather evidence).


                                                  5
has not shown that the cigarette package was material to his guilt or innocence.

“Evidence is material only if there is a reasonable probability that it will affect the

result of the proceeding.” 11 In Lolly, the police failed to collect blood that was left

behind when a burglar entered a residence through a booby-trapped window; there

were no eyewitnesses to the burglary and the blood likely would have contained

evidence material to the identification of the perpetrator. 12 In this case, in contrast,

the victim identified Rosser as the perpetrator, and it is mere speculation that the

cigarette pack might have provided any evidence regarding the robber’s identity. 13

       (12) Second, Rosser contends that his trial counsel provided ineffective

assistance by agreeing, with Rosser’s assent, to stipulate that Rosser was a person

prohibited from possessing a firearm and by failing to seek to sever trial of the

APFBPP charge from trial on the other charges. A defendant making an ineffective

assistance of counsel claim based on a failure to seek severance of charges “must

show that joinder of the offenses was sufficiently prejudicial that it was objectively

unreasonable for defense counsel not to move for severance.”14                       Moreover,

“[j]oinder of person-prohibited charges with other charges is appropriate when the


11
   Cook v. State, 2000 WL 1177695, at *4 (Del. Aug. 14, 2000).
12
   Lolly, 611 A.2d at 958.
13
   See Cook, 2000 WL 1177695, at *4 (holding that counsel was not ineffective for failing to
request a Lolly instruction concerning blood observed in a getaway car; the blood was not material
to the defendant’s claim of misidentification because the defendant was identified by
eyewitnesses).
14
   Moody v. State, 2018 WL 4676706, at *2 (Del. Sept. 24, 2018) (internal quotations omitted).


                                                6
charges are ‘based on the same act or transaction[,] constituting parts of a common

scheme or plan.’”15

       (13) Joinder was appropriate here, and Rosser therefore cannot show that it

was objectively unreasonable for trial counsel not to seek severance. Rosser was

charged with Aggravated Possession of a Firearm by a Person Prohibited, which

required the jury to conclude that, while Rosser possessed the firearm, he caused

serious physical injury to Maddrey. The APFBPP charge was therefore part of the

“same act or transaction” as the other charges arising from the Maddrey incident,

and counsel did not act unreasonably by not seeking severance. Moreover, in these

circumstances, there is no reason to believe that severance of the charges would have

resulted in a different outcome.            Similarly, the Superior Court did not err by

determining that trial counsel’s advice to Rosser to stipulate to his person-prohibited

status in order to prevent the jury from hearing evidence regarding Rosser’s prior

convictions was not unreasonable or substantially prejudicial.16

       (14) Third, Rosser asserts that his trial counsel failed to adequately

investigate the case. Specifically, he contends that trial counsel did not attempt to




15
  Brooks v. State, 2018 WL 5980577, at *2 (Del. Nov. 13, 2018).
16
   See id. at *3 (stating that stipulation to person-prohibited status was a reasonable trial strategy
because it minimized the effect of the defendant’s criminal history on the trial and that, “[v]iewed
together, trial counsel’s decisions to forgo a severance motion so that Brooks faced one trial and
to stipulate that Brooks was a person-prohibited were neither objectively unreasonable nor
sufficiently prejudicial to warrant relief under rule 61”).


                                                  7
develop a justification defense based on the statements of “Nas,” an acquaintance of

Rosser’s and Maddrey’s who interacted with Rosser and Maddrey at the 7-Eleven

store shortly before the Maddrey shooting. In his affidavit in response to Rosser’s

postconviction motion, trial counsel indicated that in his view the evidence did not

support a self-defense claim, because Rosser never admitted shooting Maddrey and

there was no evidence that Maddrey was the aggressor in the confrontation or that

he possessed a weapon.17 In support of his claim of ineffective assistance, Rosser

has submitted a transcript of an interview that a defense investigator conducted with

Nas. Nas told the defense investigator that he was speaking to Maddrey at the 7-

Eleven store when Rosser arrived. Nas stated that Rosser was acting erratically, and

that Rosser referred to Maddrey as “the enemy” and threatened to “shoot all y’all

up” before speeding off in his vehicle.18 Nas also stated that he called Rosser later

to check on him and Rosser said “Man, I think I messed up. I messed up.” 19 The

Nas interview is not exculpatory, and therefore does not support a conclusion that

trial counsel’s determination not to pursue a justification defense fell below an

objective standard of reasonableness, or that Rosser was prejudiced by that

determination.20


17
   Appendix to Opening Brief at A-50.
18
   Appendix to Opening Brief at A-20-22.
19
   Appendix to Opening Brief at A-27.
20
   See Tice v. State, 1995 WL 715854, at *3 (Del. Nov. 13, 1995) (rejecting claim of ineffective
assistance of counsel based on failure to call victim as a defense witness because further testimony


                                                 8
       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                              BY THE COURT:


                                              /s/ Gary F. Traynor
                                              Justice




from the victim “potentially could have done more harm than good” to the defense and the
defendant had “failed to substantiate to any degree how [the victim’s] testimony during the defense
portion of trial would have changed the outcome of the trial in [the defendant’s] favor”); Slater v.
State, 1995 WL 89955, at *4 (Del. Mar. 1, 1995) (“[A]lthough Slater complains about counsel’s
failure to call certain witnesses, he offers no proof of the exculpatory testimony they could have
provided. In sum, it does not appear from the record that counsel’s representation was below an
objective standard of reasonableness under prevailing professional norms.”).


                                                 9
