IN THE SUPREME COURT OF THE STATE OF DELAWARE

ELWOOD M. HUNTER, §
§ No. 355, 2014
Defendant Below, §
Appellant, § Court Below—Superior Court of
§ the State of Delaware in and for
V. § New Castle County
§
STATE OF DELAWARE, §
§
Plaintiff Below, § Cr. ID No. 0608007491
Appellee. §

Submitted: August 14, 2014
Decided: November 7, 2014

Before HOLLAND, RIDGELY and VALIHURA, Justices.
O R D E R

This 7th day of November 2014, upon consideration of the appellant’s
opening brief and the appellee’s motion to afﬁrrn under Supreme Court Rule
25(a), it appears to the Court that:

(1) The appellant, Elwood M. Hunter, ﬁled this appeal from the
Superior Court’s denial of his second motion for postconviction relief under
Superior Court Criminal Rule 61 (“Rule 61”). The appellee, State of
Delaware, has moved to afﬁrm the Superior Court judgment on the ground
that it is manifest on the face of Hunter’s opening brief that the appeal is

without merit. We agree and afﬁrm.

(2) The record reﬂects that, on August 8, 2006, Wilmington police
set up surveillance near 6th and Harrison Streets in Wilmington, Delaware,
after receiving a tip from a conﬁdential informant that a black male in a
burgundy Ford Escape with North Carolina tags would be delivering heroin
in the area later that night. At around 10:00 pm, the police observed a
vehicle matching the informant’s description pull onto 6th Street and park.
After waiting a few minutes, the police stopped the vehicle and a detective
conducted a pat-down search of the driver, who was later identiﬁed as
Hunter. During the search, the detective felt an object in Hunter’s front
pants pocket and removed it after recognizing that it felt like contraband.
The object was a small plastic bag containing four bundles of heroin.

(3) Hunter was indicted on siX drug and drug—related charges. Prior
to trial, Hunter moved to suppress the evidence on the basis that the police
had stopped his vehicle and seized him without reasonable suspicion and
then conducted a pat-down search that exceeded the scope of What was
allowed under Terry v. Ohio.1 The Superior Court held an evidentiary
hearing on the motion to suppress. At the conclusion of the hearing, the

Superior Court denied the motion, determining that, under the totality of the

1 Terry v. Ohio, 392 US. 1 (1968). A Terry frisk is a limited pat-down of a detainee’s
outer clothing during a non-custodial, investigatory detention. Its purpose is not to
discover evidence, but rather to search for weapons that may be used to harm police
ofﬁcers or bystanders. Terry, 392 US. at 29.

2

circumstances, the police had a reasonable and articulable suspicion to stop
and search Hunter based on his suspected involvement in drug activity.2

(4) On February 2, 2007, a Superior Court jury convicted Hunter of
Possession with Intent to Deliver Heroin and Maintaining a Vehicle for the
Use of Controlled Substances. On May 11, 2007, the Superior Court
declared Hunter a habitual offender and sentenced him to life in prison for

the drug offense and to eighteen months at Level V for the vehicle offense.

2 The Superior Court ruled from the bench as follows:

Under the totality of the circumstances test, I’m
going to deny the motion to suppress. There was sufﬁcient
evidence, particularly the fact that there was a past-proven
and reliable informant who identiﬁed the defendant, gave
him — gave the ofﬁcer his name, his nickname, location
where he would be found, the time and place that he would
be found, a tip was corroborated by the ofﬁcers
independently when they went to conduct surveillance of
the location. A police ofﬁcer may conduct a pat-down
search of an individual when there’s reason to believe that
he has committed a crime and that certainly existed in this
case, based on the information from the past-proven and
reliable informant, that was corroborated by the police and
when suspected narcotics are involved. There’s reason to
assume that he is armed. The contraband was in plain
touch. The police ofﬁcer had sufﬁcient experience to
understand what the bundle of heroin feels like and the
number of bags that are usually bundled together.

So, under the circumstances, the search was
reasonable, and the seizure was reasonable; therefore, the
suppression motion is denied.

Hr’ g Tr. at 47-48 (Jan. 5, 2007).

(5) On direct appeal, Hunter argued that the evidence should have
been suppressed because the detective exceeded the permissible scope of the
“plain touch” doctrine When conducting the pat-down search.3 The Superior
Court had concluded at the suppression hearing, however, that the pat-down
did not exceed the scope of the “plain touch” doctrine because the detective
conducting the pat-down had sufﬁcient familiarity with the way heroin is
packaged to have identiﬁed the object in Hunter’s pocket as bundles of
heroin. Because that conclusion was supported by the evidence, we
concluded that Hunter’s argument was without merit and afﬁrmed the
Superior Court judgment.4

(6) Hunter ﬁled his ﬁrst motion for postconviction in March 2009,
alleging, among other claims, that his trial counsel provided ineffective
representation at the suppression hearing because he did not subpoena
surveillance ﬁlm and police records. At the direction of a Superior Court
Commissioner, the State ﬁled a response to Hunter’s postconviction motion,
and Hunter’s trial counsel ﬁled an afﬁdavit in response to the claims of

ineffective assistance of counsel. By report and recommendation dated

3 Under the “plain touch” doctrine, a police ofﬁcer may seize contraband detected during
a pat-down search if the contraband is apparent from plain touch. Woody v. State, 765
A.2d 1257, 1266-67 (Del. 2001) (citing Minnesota v. Dickerson, 508 US. 366 (1993)).

4 Hunter v. State, 2008 WL 625566 (Del. Mar. 10, 2008).
4

August 3, 2009, the Commissioner considered the merit of Hunter’s
ineffective counsel claims and concluded that they should be denied.

(7) Hunter did not ﬁle objections to the Commissioner’s report and
recommendation. The Superior Court, after de novo review, adopted the
Commissioner’s report and denied Hunter’s ﬁrst motion for postconviction
relief. Hunter’s appeal from the Superior Court’s order was dismissed as
untimely filed.5

(8) In his second motion for postconviction relief, filed in February
2014, Hunter again alleged that his trial counsel was ineffective at the
suppression hearing, claiming that if counsel had “properly framed the
issues” and argued that the police lacked probable cause to stop his vehicle
the Superior Court would have excluded the evidence. Hunter’s second
postconviction motion was referred to a Commissioner. On May 14, 2014,
the Commissioner issued a report recommending that the motion should be
dismissed as untimely under Rule 61(i)(1) and as formerly adjudicated under
Rule 61(i)(4).

(9) Hunter ﬁled objections to the Commissioner’s report and
recommendation, arguing that his ineffective assistance of counsel claim

should be decided on the merits and not procedurally barred. After

5 Hunter v. State, 2011 WL 1135129 (Del. Mar. 28, 2011).
5

consideration of Hunter’s objections and de novo review of the record, the
Superior Court adopted the Commissioner’s report and recommendation and
denied Hunter’s second postconviction motion. This appeal followed.

(10) On appeal, Hunter argues that the Superior Court’s adoption of
the Commissioner’s report and recommendation was an abuse of discretion.
According to Hunter, reconsideration of his ineffective assistance of counsel

claim is warranted because:

on evegy level of review thus far, the courts have
failed to address and discern and resolve the merits

9_f [his] Fourth Amendment claim that he was
illegally stopped by the Wilmington Police Drug
Unit, who were absent on both an ‘exigent

circumstance’ or ‘warrant’ when they committed a
FULL-SCALE seizure and arrest of him.6

(11) We disagree that the courts have failed to address the merits of
Hunter’s claim that his stop and warrantless search were illegal. To the
contrary, those issues were decided at the hearing on Hunter’s motion to
suppress,7 the denial of which was afﬁrmed on direct appeal.8 In this appeal
from the denial of his second postconviction motion, Hunter has not
demonstrated that reconsideration of the issues is warranted. “ [A] defendant

is not entitled to have a court re-examine an issue that has been previously

6 Appellant’s Opening Brief at 10-11 (emphasis in original).
7 See supra note 1.
8 Hunter v. State, 2008 WL 625566 (Del. Mar. 10, 2008).

6

resolved ‘simply because the claim is reﬁned or restated’”9 as ineffective

assistance of counsel.10

NOW, THEREFORE, IT IS ORDERED, that the motion to afﬁrm is
GRANTED. The judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Randy J. Holland
Justice

9 Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992) (quoting Riley v. State, 585 A.2d
719, 721 (Del. 1990)).

10 See Skinner v. State, 607 A.2d at 1172 (concluding that a prior disposition of an issue

on direct appeal “was, in fact, a substantive resolution of . . . [the] present ineffectiveness
of counsel claim”).

