IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE oF DELAWARE, )
§ crim. 11) No. 1406020386
vi i Cr. A. N<»s. 1N 14-07-0530, ec¢.
BERNARD ELLERBE, §
Defendant. §

Submitted: June 2, 2016
Decided: August 2, 2016

ORDER DENYING MOTION _I<"{§R POSTCONVICTION RELIEF
This Z"d day of August, 20l6, upon consideration of the Defendant Bernard
Ellerbe’s ("Ellerbe") Motion for Postconviction Relief (D.I. 48); the State’s
Response thereto (D.I. 50); his trial counsel’s affidavit (D.I. 47); Ellerbe’s Reply
Letter (D.I. 51); and the record in this rnatter, it appears to the Court that:
(l) On June 25, 2()14, New Castle County Police Detective Mark
Grajewski, Drug Enforcement Administration (DEA) Task Force Officer Michael
Cornbrooks, and DEA Special Agent Dave Hughes met in a restaurant’s parking

lot to discuss a surveillance operation.'

Unrelated to their operation, the officers
noticed a white car that was occupied by two individuals pull in. Moments later a

black Chevy Malibu entered the lot, circled around as if looking for someone, then

’ Jan. 29, 2015 Tr. rest ar 57-59,.

pulled directly next to the white car.z Each vehicle rolled down its window and the
drivers brought their hands together as if to exchange something.3 'l`he white car
drove away, while police observed the black car’s driver - later identified as
Ellerbe - counting money/l At that point, officers suspected a drug transaction had
occurred and decided to stop Ellerbe for further investigation.$ The officers, each
in his own unmarked car, followed Ellerbe out of the parking lot.6

(2) Officer Combrooks initiated his emergency lights and Ellerbe pulled
over onto the road’s shoulder.7 But as soon as Officer Cornbrooks approached the
car, Ellerbe sped away.g

(3) Ellerbe then led police on a high speed chase, which ultimately

9

resulted in him losing control of his car and striking a tree. Officers began to

remove Ellerbe, who was not seriously injured, from the wreckage and found a

2 1a ar 61-63..

3 1a ar esa

" 1a. ar 64.
 1a ar 64-65.
6 1a

7 1a ar 67, 99.,

 1a ar 100_.

9 1a ar 103-115.

ripped bag containing twenty bundles, or more than 260 individual bags, of heroin
on his lap, as well as approximately $12,000 cash in his pocket.m

(4) Ellerbe was indicted by a grand jury on eleven charges related to drug
possession and police evasion. A two-day jury trial was conducted in late January
20l5. Michael C. Heyden, Esquire ("Heyden") represented Ellerbe throughout the
trial. The jury found Ellerbe guilty of Drug Dealing, Aggravated Possession of
Heroin, Possession of Drug Paraphemalia, Reckless Endangering in the First
Degree (two counts), Disregarding a Police Officer’s Signal, and Reckless
Driving.ll After a pre-sentence investigation was prepared, the Court sentenced
Ellerbe to eighteen years of imprisonment followed by diminishing levels of partial
confinement and probationary supervision.lz

(5) Heyden filed a Notice of Appeal to the Delaware Supreme Court on

Ellerbe’s behalf, but it was voluntarily dismissed,w so that Ellerbe’s new (and

1° 1¢1. ar 116-117.
11 See DEL. CODE ANN. tit. l6, § 4752(2) (2014) (drug dealing); id. at § 4752(4) (aggravated
possession); id. at § 477l (possession of drug paraphernalia); ia’. at tit. ll, § 604 (reckless

endangering in the first degree); ia'. at tit. 2l, § 4l03(b) (disregarding a police officer’s signal);
and ia'. at § 4l75(a) (reckless driving).

On the first day of trial, the State entered a nolle prosequi on five additional charges brought in
the June 26, 2014 indictment. See Def.’s Mot. at 2 n.7.

12 sentencing order, snne v_ Bemnrd Ezzerbe, in Nns. 1406020386 and 1306016966 (Dei.
Super. Ct. June 3, 2015).

Not. of Dismissal, Ellerbe v. State, No. 324, 2015 (June 26, 2015).

_3_

present) counsel could file his appeal.m On September 25, 2015, Ellerbe again
voluntarily dismissed his direct appeal.

(6) This amended motion is Ellebe’s first and timely motion for
postconviction relief.l§ He raises a single claim alleging ineffective assistance of
counsel. Specifically, Ellerbe seeks vacatur of his conviction and a new trial
because, in his estimation, his trial counsel, Heyden, was constitutionally
ineffective when cross-examining one of the State’s witnesses, Ms. Tara Rossy
("Rossy").m

(7) DEA Forensic Chemist Rossy testified regarding her December 2014
analysis of the heroin seized from Ellerbe and his car.w Rossy tested the seized
items and concluded that the substance was heroin totaling 3.8 grams.lg

(8) Prior to trial, the State revealed that Rossy had tested positive for

benzodiazepine on November 21, 2013, during a random DEA employee drug

"‘ N@r. of Appeal, B@mard Ellerbe v. s¢ar@, N@. 330, 2015 (Del. filed June 25, 2015).
While his direct appeal was pending, Ellerbe filed a pro se sentence reduction motion; the Court
deferred decision on that application until Ellerbe’s appeal fmalized. Order, State v. Bernard
Ellerbe, ID Nos. 1406020386 and l3060l6966 (Del. Super. Ct. Sept. 4, 2015) (staying and
deferring decision on Ellerbe’s Rule 35(b) motion until disposition of his pending appeal).

15 On December 18, 2015, present counsel filed Ellerbe’s motion for postconviction relief

(D.I. 43) that has since been supplemented and amended to its current form. (D.I. 45 & 47).

16 Def.’s Mot. for Post Conviction Relief ("Def.’s Mot.") at 18-24; Def.’s Reply Ltr. (June
2, 2016).

Jan. 30, 2015 Tr. Test. at 3-39.

18 1a ar 32-33.

test.lg Heyden explored this issue outside the presence of the jury via voir dire.zo
Rossy testified that immediately prior to her positive test, she had failed to wear a
protective mask while analyzing a 576-kilo cocaine specimen in an unrelated
matter.zl In response to this violation, the DEA suspended Rossy from her position
for two days without pay.zz At the time of trial, Rossy was awaiting the results of
her appeal of that administrative decision.23 No allegations of wrongdoing were

made against Rossy in the present case.

(9) Ellerbe now contends that Heyden did not effectively cross-examine
Rossy regarding her prior disciplinary record for purposes of impeachment under
Delaware Rules of Evidence 608(b) or 403.24 According to Ellerbe, because

Heyden did not bring the disciplinary action to the jury’s attention, the jury was

19 1a ar 3:9;_
20 sea id at 3-25.
21 1a at 7-10.

22 1013

23 Id._

24 Def.’s Mot. at 20-21. See also D.R.E. 608(b) ("Specific instances of the conduct of a
witness, for the purpose of attacking or supporting the witness’ credibility . . . may . . . in the
discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-
examination of the witness (l) concerning the witness’ character for truthfulness or
untruthfulness . . ."); D.R.E. 403 ("Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or
misleading the jury, or by considerations of undue delay, waste of time or needless presentation

of cumulative evidence.").

"unable to fully evaluate her credibility at trial."z§ According to Ellerbe, this
failure was an unreasonable trial strategy that unfairly prejudiced him, and had the
jury heard this evidence, the outcome of his trial would have been different.

(10) In order to prevail on a claim for ineffective assistance of counsel
pursuant to Superior Court Criminal Rule 6l, Ellerbe must show both: (a) that
Heyden’s representation fell below an objective standard of reasonableness, and
(b) that there is a reasonable probability that but for Heyden’s errors, the result of

26 Ellerbe may not rely on conclusory

the proceeding would have been different.
statements of ineffective assistance; instead he must plead his allegations of
prejudice with particularity.m In evaluating this claim, the Court is mindful that
there is a strong presumption that the trial counsel’s representation was
reasonable,zg and that "[i]t is not this Court’s function to second-guess reasonable

trial tactics."29 Ellerbe fails to carry his burden to establish either showing required

by the ineffective assistance of counsel test.

25 Def.’s Mor. ar 22.

26 Strickland v. Washington, 466 U.S. 668, 694 (1984); Albury v. State, 551 A.2d 53, 58
(Del. 1988).

27 See Monroe v. State, 2015 WL 1407856, at *5 (Del. Mar. 25, 2015) (citing Dawson v-,
State, 673 A.2d 1186, 1196 (Del. 1996)).

See Wright v. State, 671 A.2d 1353, 1356 (Del. 1996),_

29 State v. Drummond, 2002 WL 524283, at *1 (Del. Super. Ct. Apr. 1, 2002); Burns v.
State, 76 A.3d 780, 788 (Del. 2013) ("It should be noted that even evidence of ‘[i]solated

_6_

(l l) First, Heyden’s decision not to cross-examine Ms. Rossy on her prior
disciplinary record was objectively reasonable.w An attomey’s decision as to how
to cross-examine a witness is a tactical decision which deserves great weight and

deference.” Heyden thoroughly explored Rossy’s disciplinary action during voir

a'ire. From this testimony, it was reasonable for Heyden to conclude that Rossy’s

:_;_¢__

2013 safety violation - which reflected little as to the validity of the testing itself
and took place over one year prior to her involvement with Ellerbe’s case - was

was of little value.32 Ellerbe has thus failed to overcome the strong presumption

poor strategy, inexperience, or bad tactics do[es] not necessarily amount to ineffectiveassistance
of counsel."’).

 

30 Hoskins v. State, 102 A.3d 724, 730 (Del. 2014) ("If an attorney makes a strategic choice
‘after thorough investigation of law and facts relevant to plausible options,’ that decision is
‘virtually unchallengeable’ . . .").

31 owen v_ S¢aze, 720 A.zd 547, 557 (D@i. 1993) (“Wherher to ca11 a wim@s_~,, and how to
cross-examine those who are called are tactical decisions."); Shelton v. State, 744 A.2d 465, 479
(Del. l999) ("So long as the decision to cross-examine is made reasonably, it will not constitute
a basis for a claim of ineffective assistance of counsel."); State v. Hamby, 2005 WL 914462, at
*3 (Del. Super. Ct. Mar. l4, 2005) (fmding that attorney’s decision not to cross-examine sole
witness regarding her alleged alcohol problem was "professionally sound").

32 Heyden Aff. at 1 2 (stating that "[t]here was no testimony showing that the event had any

impact on the testing in this case" and concluding that the "unrelated event . . . did not have any
probative value concerning the test results in the present case.").

_7_

that Heyden acted reasonably” and on that basis alone his ineffectiveness claim

must fail.34

(12) Second, however, Ellerbe also has failed to demonstrate that the Court

would have permitted the cross-examination in question or that the testimony

1.”

would have resulted in a different outcome at tria After conducting voir dire,

the Court observed that the probative value of questioning Rossy on this issue
would have been substantially outweighed by the danger of unfair prejudice, and
thus, likely inadmissible.% The record does not reflect that Rossy failed to follow
any DEA testing protocol or other applicable standards in Ellerbe’s particular case.
Her failure to follow a safety standard over a year prior would have had minimal, if

any, impact on the jury’s consideration. Moreover, it is unlikely that Rossy’s

er

33 Bams v_ state-76 'A.zd 780, 788 (r)ei. 2013) (“Uadet strte/elead, the sttategte
decisions made by counsel are entitled to a strong presumption of reasonableness.").

34 see state a Meolettea, 2011 WL 937534, at *4 (Dei. sapet. Ct. Mat. 21, 2011) (“Te
restate the requirements of Stricklancl, a defendant must establish two things, not just one: that
trial counsel's performance was deficient and that but for that deficiency, 'the outcome of the
proceedings would have been different. If a defendant cannot establish both prongs, then the
ineffective assistance of counsel claim fails.") (emphasis in original).

35 see Pzeefv. stete, 75 A.zd 811, 328-29 (Dei. 2013) (eeaeiadiag that murder defendants
claim regarding his trial attorney’s decision to cross-examine State’s witness in a way that was
allegedly inconsistent with defendant’s theory, even when combined with other purported errors,
fell far short of establishing a reasonable probability of a different result).

36 See Jan. 30, 2015 Tr. Test. at 23-25 ("I think that’s [Heyden’s decision to forego seeking
admission of this evidence] appropriate after hearing the entirety of it. Under Rule 403, l do
believe that the 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.").



additional testimony would have overcome the overwhelming evidence against
Ellerbe, including: the Officers’ visual observations of the drug transaction
between Ellerbe and the white car, Ellerbe’s high-speed evasion of police, the large
amount of heroin found on Ellerbe’s lap when pulled from the car, and the large
amount of cash found on his person. With 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.37

(l3) Ellerbe has not shown that Heyden’s representation fell below an
objective standard of reasonableness or that, but for Heyden’s alleged errors, there
is a reasonable probability that his trial would have been different. Accordingly,
Ellerbe’s Amended Motion for Postconviction Relief must be DENIED.

so oRDERED this 2"" day of Augusr, 2016.

/,;%¢J,,,£;Q

PAUL R. WALLACE, JUDGE

37 seeAzsmn v_ szaze, 2015 WL 5297709, ar *3 (Del. sept 4, 2015) (¢iung Wrighrv_ s¢a¢e,
671 A.2d 1353, 1356 (Del. 1996)) (one claiming ineffective assistance "must make specific
allegations of how defense counsel’s conduct actually prejudiced the proceedings, rather than
mere allegations of ineffectiveness"); see also Ploof, 75 A.3d at 825 ("Strickland is a two-
pronged test, and there is no need to examine whether an attorney performed deficiently if the
deficiency did not prejudice the defendant."); Swan v. State, 28 A.3d 362, 383 (Del. 20ll)
(observing that Strz`cklana' requires that an inmate make both showings - deficient performance
and prejudice - and "‘ [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice . . . that course should be followed."’) (quoting Strickland, 466 U.S. at

697)_

Original to Prothonotary

cc: Bernard Ellerbe
Mark A. Denney, Jr., Deputy Att0rney General
Patrick J. C0llins, Esquire
Colleen E. Durkin, Esquire
Michael C. Heyden, Esquire

_1()_

