         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 ROBERT MOODY,                              §
                                            §     No. 570, 2017
       Petitioner Below,                    §
       Appellant,                           §     Court Below: Superior Court
                                            §     of the State of Delaware
       v.                                   §
                                            §     ID. No. 1307020184
 STATE OF DELAWARE,                         §
                                            §
       Respondent Below,                    §
       Appellee.                            §


                               Submitted: August 15, 2018
                              Decided: September 24, 2018

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

                                     ORDER

      This 24th day of September 2018, upon consideration of the parties’ briefs and

the record on appeal, it appears that:

      (1)    The Appellant, Robert Moody, appeals from a Superior Court order

which denied his motion for postconviction relief. He asserts three claims. He

contends that: (1) the Superior Court erred by ruling he was not prejudiced by his

trial counsel’s failure to move to sever a person prohibited charge and counsel’s

stipulation to his person prohibited status; (2) the Superior Court erred by ruling that

his trial counsel was not ineffective in failing to move to suppress evidence of a

firearm and ammunition that formed the basis for the charges against him; and (3)
the Superior Court abused its discretion by not allowing an expansion of the record

during the postconviction proceedings. We find no merit to Moody’s claims and

affirm.

       (2)    Around midnight on July 25, 2013, Wilmington Police Officer

Matthew Geiser was patrolling a high crime neighborhood.1 He observed Moody

riding his bicycle with a noticeable bulge around his right rear waistline. Based on

Officer Geiser’s training and experience, he believed Moody was armed.                    He

sounded his vehicle’s air horn and ordered Moody to stop. Moody looked at the

officer and performed a “security check” of his right rear waistline with his hand.

Then, Moody sped up on his bicycle and turned down an alleyway behind the vacant

Walt’s Flavor Crisp store.

       (3)    Officer Geiser crossed paths with Moody at the other end of the alley.

He ordered Moody to get off his bicycle and noticed Moody no longer had a bulge

in his right rear waistline. Along with other officers, Officer Geiser searched the

area and arrested Moody after discovering a .357 Magnum on the roof of one the

buildings adjacent to the ally.         The gun was loaded with three rounds of

ammunition.

       (4)    On March 22, 2014, a jury convicted Moody of possession of a firearm


1
 All facts are drawn from our previous decision on Moody’s direct appeal. Moody v. State, 2016
WL 768353 (Del. Feb. 26, 2016).


                                              2
by a person prohibited, carrying a concealed deadly weapon, and possession of

ammunition by a person prohibited. Moody was sentenced to a total of 21 years at

level V, suspended after 5 years for decreasing levels of probation.

         (5)     Moody filed a direct appeal to this Court. We affirmed his conviction.2

Moody then filed a timely Motion for Postconviction Relief. The Superior Court

denied his motion. This appeal followed.

         (6)     The Superior Court’s denial of a Rule 61 Motion for Postconviction

relief is reviewed for an abuse of discretion.3 Questions of law are reviewed de

novo.4

         (7)     The two-pronged test for claims of ineffective assistance of counsel was

established by the United States Supreme Court in Strickland v. Washington.5 First,

a defendant must show that his “counsel’s representation fell below an objective

standard of reasonableness.”6 “Second, the defendant must show that the deficient

performance prejudiced the defense.”7

         (8)     Trial counsel’s actions “are afforded a strong presumption of




2
    Id.
3
    Neal v. State, 80 A.3d 935, 941 (Del. 2013).
4
    Id.
5
    466 U.S. 668 (1984).
6
    Id. at 687.
7
    Id.


                                                   3
reasonableness” because of the “distorting effects of hindsight.” 8 The conduct

being challenged must be evaluated “from the counsel’s perspective at that time.” 9

       (9)       If a defendant is able to demonstrate “that his counsel’s conduct fell

below an objective standard of reasonableness,” he must then demonstrate counsel’s

error was “so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.”10 “Defendant must establish ‘that there is a reasonable probability that,

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

different.’”11

       (10) Moody first contends that the Superior Court erred by ruling that his

trial counsel was not ineffective by failing to move to sever the person prohibited

charge. His theory is that he suffered prejudice because trying the person prohibited

charge together with the other two charges allowed the jury to infer that he had a

motive for disposing of the firearm. It allowed the jury to infer, the reasoning goes,

that he threw the weapon on the roof because he knew that he was a person

prohibited and could not be caught with a firearm in his possession. This inference,

he contends, enabled the State to prove that he was carrying a concealed deadly

weapon with ammunition when he was first observed. Had the person prohibited


8
   Neal, 80 A.3d at 941-42 (citing Strickland, 466 U.S. at 689).
9
   Strickland, 466 U.S. at 689.
10
    Neal, 80 A.3d at 942 (citing Strickland, 466 U.S. at 687).
11
    Id. (citing Strickland, 466 U.S. at 694).


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charge been severed, he argues, the State would not have been able to prove that he

was carrying a concealed deadly weapon or that he possessed ammunition.

          (11) Under the first Strickland prong, Moody must show trial counsel’s

decision was objectively unreasonable.               Trial counsel filed an affidavit in the

postconviction proceeding attesting that he did not believe a good faith basis existed

to move for severance of the person prohibited charges. The trial strategy was to

draw “as little attention as possible to [the person] prohibited status and focus[] on

the reasonable doubt evidence and arguments concerning constructive possession.”12

Superior Court Rule 8(a) allows for joinder of charges that are the product of a

common scheme or plan. We have previously held “that [even though] Person

Prohibited charges are frequently severed, it is also true they are sometimes tried

together with the other charged offenses.”13 “[A] defendant making an ineffective

assistance of counsel claim must show that joinder of the offenses was sufficiently

prejudicial that it was objectively unreasonable for defense counsel not to move for

severance.”14 In this case the charges were properly joined and no showing has

been made that prejudice resulted which rendered it objectively unreasonable for

defense counsel not to move to sever. While it was unlawful for the defendant to



12
      Moody v. State, 2017 WL 5952762, at *2 (Del. Super. Ct. Nov. 30, 2017).
13
      Dale v. State, 2017 WL 443705, at *2 (Del. Jan. 31, 2017).
14
     Id.


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be in possession of a firearm because he was a person prohibited, it was also

unlawful for him to carry a firearm concealed. The State was free to argue that he

had a motive or reason to dispose of the firearm while in the alley because he was

carrying it concealed illegally when the officer commanded him to stop. Stipulating

to the person prohibited status, which prevented the jury from being aware of the

reason the defendant was a person prohibited, was an acceptable strategic choice.

      (12) In addition, the State presented sufficient evidence such that even had

the person prohibited charge been severed, there is not a reasonable probability that

the outcome would have been any different. Officer Geiser testified to seeing the

bulge in Moody’s waistline, Moody conducting a “security check,” Moody failing

to stop at his command, and Moody no longer having the bulge after he exited the

other end of the alleyway. After searching the alleyway, the .357 Magnum was

spotted in plain view. Based upon this testimony from Officer Geiser, there is not

a reasonable probability that the outcome of the trial would have been different had

the person prohibited charge been severed.

      (13) Next, Moody contends that the Superior Court erred by ruling that his

trial counsel was not ineffective for failing to file a motion to suppress the evidence

of the finding of the .357 Magnum.         He contends no reasonable, articulable

suspicion existed that Moody was committing, had committed, or was about to




                                          6
commit a crime and Officer Geiser had no probable cause to stop him. He argues

Officer Geiser had no indication Moody was involved in criminal conduct when he

first ordered him to stop; therefore, the ultimate seizure of the gun in the alleyway

was illegal.

         (14) Moody relies upon Jones v. State in arguing the initial stop was illegal.15

Jones stands for the proposition that a reasonable, articulable suspicion cannot be

solely based on a person’s presence in a “particular neighborhood at a particular time

of day with no independent evidence that the defendant has committed, is

committing or is about to commit a crime.”16 Moody’s claim is distinguishable.

Based upon Officer Geiser’s experience and training, he reasonably believed Moody

was concealing a firearm based upon the bulge in his rear waistline and the security

check he performed upon that bulge. His stop was not based solely upon his being

in a high crime neighborhood at night.

         (15) Moody further relies on the case of United States v. Cronic to support

his ineffective assistance of counsel claim in regard to suppression of the firearm.17

Cronic lays out three scenarios in which prejudice is presumed in an ineffective

assistance of counsel claim. He relies upon the second scenario: “[counsel] entirely



15
     745 A.2d 856 (Del. 1999).
16
     Id. at 871.
17
     466 U.S. 648 (1984).


                                             7
fail[ing] to subject the prosecution’s case to meaningful adversarial testing.” 18

Moody’s reliance on this case is unavailing. Under this concept from Cronic, the

failure to subject the State’s case to meaningful adversarial testing must be

“complete,” not limited to the failure in filing a single motion.19

         (16) Turning to the suppression issue under Strickland, Moody must show

trial counsel’s decision was objectively unreasonable. Trial counsel’s affidavit in

the postconviction proceeding attested that he did not believe a good faith basis

existed under current search and seizure law to move for suppression of the gun

because there was no “lack of reasonable suspicion to detain based on the officer’s

allegations of observing a bulge consistent with a firearm.” 20        Officer Geiser

observed the bulge which he believed to be a concealed firearm based upon his

training and experience. Moody was in a high crime area after midnight and

abruptly went the wrong way down a one-way alley when he became aware Officer

Geiser was following him in his marked police car. These facts support trial

counsel’s objectively reasonable thinking that there was no sufficient basis for filing

a motion to suppress the discovery of the firearm.

         (17) Under the second Strickland prong, Moody can similarly not show



18
     Id. at 658.
19
     Bell v. Cone, 535 U.S. 685, 696–97 (2002).
20
     App. Opening Br. at 42.


                                                  8
prejudice.      As already described, Officer Geiser had a reasonable, articulable

suspicion to stop Moody. The subsequent seizure of the .357 Magnum would likely

be upheld as legal. Thus, there is no reasonable probability that the outcome would

have changed had Moody’s counsel filed the motion.

         (18) Moody’s third claim on appeal is that the Superior Court abused its

discretion by not allowing him to expand the record during his postconviction

proceeding. He claims that in order to determine whether a motion to suppress

would have been successful in the original trial proceeding he should be allowed to

present witnesses and evidence to allow the postconviction court to have a more

complete record. He argues he should have been allowed to compel testimony from

Officer Geiser to discover his initial motivations in stopping him. This would be

dispositive of the suppression issue, according to Moody.

         (19) Grants or denials of evidentiary hearings are reviewed for an abuse of

discretion. 21      The Superior Court decides whether an evidentiary hearing is

desirable.22 Should it not be desirable, the judge is free to make such disposition as

justice dictates.23

         (20) Here, the Superior Court had a full record from the initial trial



21
     Rodriguez v. State, 109 A.3d 1075, 1081 (Del. 2015).
22
     Del. Super. Ct. R. 61(h)(1).
23
     Id. at 61(h)(3).


                                                 9
proceeding and found a further evidentiary hearing during the postconviction

proceeding was not necessary. The court had Officer Geiser’s testimony from the

preliminary hearing and from the trial. This testimony relates to his reasonable,

articulable suspicions for stopping Moody. The Superior Court decision not to hold

an evidentiary hearing was not an abuse of discretion.

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

Court is AFFIRMED.

                                         BY THE COURT:

                                         /s/ James T. Vaughn, Jr.
                                         Justice




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