IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

v.
WILLIAM D. BURTON, Cr. A. No. 1301022871

Defendant.

Date Decided: April 30, 2018
On Defendant William Burton’s Motion for
Postconviction Relief. DENIED.
ORDER
On January 3l, 2013 following up on a tip from a past-proven reliable
informant an administrative search was conducted in the residence of William
Burton (Defendant) who was at the time a Level ll probationer and registered sex
offender. The informant stated that an active probationer was selling crack cocaine
from his residence During the search of Defendant’s residence police discovered
in his bedroom baggies, a digital scale, a plate with an off-white substance, a razor
blade, a grinder, smoking papers, and clear zip-lock bags with a plant like substance
consistent in appearance with marijuana Police also discovered a clear plastic bag

containing a white, powdery substance consistent in appearance with cocaine located

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in a jacket in Defendant’s bedroom closet. The powdery substance and plant like
substance field tested positive for cocaine and marijuana respectively. The evidence
seized was found to have preliminary weights of l gram of marijuana and 29 grams
of cocaine. Defendant was arrested and a New Castle County Grand Jury indicted
Defendant on charges of Drug Dealing, aggravated possession of Cocaine, two
counts of Marijuana possession and Possession of Drug Paraphernalia. Following
a one-day bench trial the Court found Defendant guilty of aggravated possession of
cocaine, drug dealing, possession of marijuana, and possession of drug
paraphernalia Defendant was sentenced to life in prison as a habitual offender for
drug dealing cocaine tier 4 quantity The tier 4 quantity for cocaine is 20 grams or

more of cocaine or of any mixture containing cocaine.l

Parties’ Contentions
Defendant makes two claims for postconviction relief; That the State violated
Defendant’s right to due process, committing a Brady violation by withholding
evidence favorable to Defendant in violation of the United States and Delaware
Constitutions, and that Trial Counsel was ineffective in permitting Defendant to
stipulate to State’s evidence without Defendant’s knowledge or consent. The State

contends that Defendant’s claim of a Brady violation has previously been addressed

 

‘ 16 Dez. C. §4751C

by the Delaware Supreme Court in affirming the decision of this Court. ln response
to Defendant’s ineffective assistance of counsel claim State contends that Defendant

has not raised any concrete allegations of prejudice
Discussion

The Court must address Defendant’s motion in regard to Rule 61(i) procedural
bars to relief before assessing the merits of his motion.2 The State has conceded and
the Court agrees that Defendant’s motion is not time barred or repetitive Rule
61(i)(3) bars relief if the motion includes claims not asserted in the proceedings
leading to the final judgment3 This bar is also not applicable as to the Defendant’s
claim of ineffective assistance of counsel, which could not have been raised in any
direct appeal.4 Finally, Rule 61 (i)(4) bars relief if the motion is based on a formally

adjudicated ground.5
Suppression of Bradv Evidence

Defendant claims that additional information has come to light and therefore
reconsideration is warranted in the interest of justice and thus should not be barred

procedurally under Rule 6l(i)(4). This claim forms the basis of Defendant’s Due

 

2 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

3 Super. Ct. Crim. R. 61(i)(3).

4 See State v. Berry, 2016 WL 5624893, at *4 (Del. Super. Ct. June 29, 2016); see
also Watson v. State, 2013 WL 5745708, at *2 (Del. 2013).

5 Super. Ct. Crim. R. 6l(i)(4).

Process argument that the State withheld exculpatory evidence in violation of the
Supreme Court of the United States’ holding in Brady v. Maryland. 6 Defendant
claims that evidence was available pertaining to the Office of the Chief Medical
Examiner (“OCME”) drug evidence scandal and that this evidence is favorable to
him and that it was withheld by the State in prior proceedings before this Court and
the Supreme Court. Defendant offers accusations made against the OCME forensic
chemist responsible for testing the evidence related to his conviction, the suspension
of the same forensic chemist for unspecified reasons, and the resignation of two other

OCME staff members as new evidence of the alleged Brady violation

The Court considers Brady claims under Rule 6l(i)(5) narrow “miscarriage of
justice” exception.7 The Supreme Court set forth the proper analysis for claims of a

Brady violation.

The reviewing Court may also consider any adverse effect from nondisclosure
on the preparation or presentation of the defendant's case There are three
components of a Brady violation: (1) evidence exists that is favorable to the accused,

because it is either exculpatory or impeaching; (2) that evidence is suppressed by the

 

6 373 U.S. 83 (1963). (“[T]he suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.”)
7 Wright v. Stare, 91 A.3d 972, 985 (Del. 2014).

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State; and (3) its suppression prejudices the defendant.” In order for the State to
discharge its responsibility under Brady, the prosecutor must disclose all relevant
information obtained by the police or others in the Attomey General's Office to the
defense That entails a duty on the part of the individual prosecutor “to learn of any
favorable evidence known to the others acting on the government's behalf in the

case, including the police.”8

The first prong of Brady must be reviewed in the light of the Court’s decision
in State v. Irwin. In lrwin the Court set forth a bright line that a defendant will only
be allowed to present evidence or question State’s witnesses regarding the OCME
investigation only if there is a discrepancy in weight, volume or contents from what
is described by the seizing officer.°) ln [rwin the Court acknowledges that
discrepancy in weight due to a multitude of factors is not uncommon 10 Furthermore
a balance must be struck as to the explanation of any discrepancy to the finder of
fact so that they may determine if the evidence offered at trial is that which was
seized from the defendantll The discretion to limit the extent of the evidence

regarding the OCME investigation remains with the trial judge12 Additionally,

 

8Ia'.

9 State v. lrwin, 2014 WL 6734821 at * 12
10lal.

ll Id. at *13

'Zld. at *12

unlike other scandals, there has been no evidence to suggest that OCME staff
tampered with evidence in order to achieve positive results or to secure

convictions13

This Court applied the lrwin test to the facts of this case when considering

Defendant’s motion for a new trial, and declines to reiterate that analysis here

Moving to the second prong of Brady Defendant offers accusations directed
against the forensic chemist responsible for testing the evidence related to his
conviction, the suspension of the same forensic chemist for unspecified reasons, and
the resignation of two other OCME staff members. There was no indication of
wrongdoing at the OCME until after Defendant was found guilty and sentenced in
late 2013. Defendant’s direct appeal and motion for new trial came after the
revelation of the OCME scandal in 2014. These two proceedings asserted that the
State was in possession of Brady material related to the OCME scandal which the
State withheld from Defendant. This Court and the Delaware Supreme Court found
no merit to these claims. Information regarding the OCME investigation has become

widespread and a matter of public record since 2014. Defendant has offered no

 

13 Brown v. State, 108 A.3d 1201, 1204-05 (Del. 2015) (distinguishing from U.S. v.
Hampton, 66 F.Supp3d 247 (D.Mass 2015), noting that a laboratory chemist in
Massachusetts had pleaded guilty to multiple charges of tampering with evidence
by adding controlled substances to the samples she tested in order to achieve a
positive test result).

evidence that there has been misrepresentation or concealment on the part of the

State prior to any of his proceedings

The third prong in determining if a Brady violation occurred is to determine
if Defendant has been prejudiced as a result of suppression of evidence To date
Defendant has claimed violations of his Constitutional rights, appealed his case to
the Delaware Supreme Court, and now moves for postconviction relief. Defendant
at no time has argued that any new evidence has created a strong inference that he is
actually innocent of the drug charges for which he was convicted.14 Defendant did
not challenge the chain of custody in his initial trial and made no indication that the
evidence Seized from his residence was not the evidence that was presented at his
trial. This Court held a bench trial in which Defendant was found guilty beyond a
reasonable doubt. No evidence has been proffered to indicate that Defendant has

been prejudiced as a result of the OCME investigation and the fallout therefrom.

Defendant’s case mirrors that of the similarly situated defendants considered
in the decision of State v. Miller.15 “With regard to the defendants who were

convicted at trial, the motions ignore that the identity and weight of the drugs was
undisputed in all three cases. Facts concerning the controlled substances and the

OCME lab reports were stipulated to and admitted into evidence without

 

14 Cannon v. State, 127 A.3d 1164, 1167 (Del. 2015).
15 State v. Ml`ller, 2017 WL 1969780 (Del. Super Ct. 2017)

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objection.”16 Furthermore “Evidence of the unfortunate practices and events

4

transpiring at the OCME did not exist until early 2014, and there can be ‘no

retroactive Brady violation for failing to report what was not known.”17

Defendant had the opportunity to contest the evidence seized from his home
and presented at trial, but did not do so. Defendant had the opportunity to contest
the evidence presented against him while his case was stayed in light of revelations
of wrongdoing at the OCME, but again failed to do so. There was sufficient evidence
of guilt to convict beyond a reasonable doubt in Defendant’s case Defendant has
been unable to present evidence to support that the events at the OCME affected his
case specifically other than accusations leveled at OCME staff members generally.
As such any potential impeachment evidence based on the OCME scandal does not
place the conviction of Defendant in such a light so as to “undermine confidence” in

his guilty verdict.18
Ineffective Assistance of Counsel

Defendant asserts that his trial counsel was ineffective in failing to contest the

evidence presented at trial thereby violating his constitutional rights. Defendant

 

16 Ia'. at *7
17 Ia'. at *8
]SId.

agreed to a bench trial in order to preserve the right to appeal the Court’s ruling on

his suppression motion.

Delaware adopted the two-prong test proffered in Stricklana' v. Washington to
evaluate ineffective assistance of counsel claims.19 To succeed on an ineffective
assistance of counsel claim, a petitioner must demonstrate that “counsel’s
representation fell below an objective standard of reasonableness, and that there is a
reasonable probability that but for counsel’s unprofessional errors, the result of the

proceeding would have been different.”20

To avoid the “distorting effects of hindsight,” counsel’s actions are afforded a
strong presumption of reasonableness.21 The “benchmark for judging any claim of
ineffectiveness [is to] be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having

produced a just result.”22 The Court’s objective in evaluating counsel’s conduct is

 

19 See Strickland v. Washington, 466 U.S. 668 (1984); see also Albury v. State, 551

A.2d 53 (Del. 1988).
20 Flamer v. State, 585 A.2d 736, 753 (Del. 1990); see also Stricklana’ v. Washington,

466 U.s. 668 (1984).
21 Neal v. State, 80 A.3d 935, 942 (Del. 2013) (citing Stricklana' v. Washington at

689).

22 State v. Wright, 2015 WL 648818, (Del. Super. Ct. Feb. 12, 2015)(citations
omitted).

to “reconstruct the circumstances of counsel’s challenged conduct, and to evaluate

the conduct from the counsel 's perspective at the time.”23

lf Defendant can demonstrate that counsel’s conduct failed to meet an
objective standard of reasonableness the second prong of the Stricklana' analysis
requires the Court to determine what, if any, effect counsel’s ineffectiveness had on
the outcome of Defendant’s trial.24 “[The Court] will not set aside the judgment in
a criminal proceeding if the error had no effect on the outcome.”25 Defendant must
show that but for counsel’s ineffectiveness a more favorable result is not just

conceivable, but rather the likelihood of a favorable outcome is substantial.26

Defendant bases his claim of ineffective assistance of counsel argument on
the grounds that by relying on the record of Defendant’s suppression hearing
Counsel was unreasonable There are two issues that can be extracted from this
argument; 1) Defendant voluntarily waived his right to a trial by jury, and 2) a

strategic choice was made in waiving a trial by jury.

Strickland provides that “strategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; and

 

23 Neal, 80 A.3d 935 at 942. (citing Stricklana' v. Washington, at 689) (emphasis
Supplied).

24 Ia'.

25 Ia'. (citing Stricklana’ v. Washington, at 692).

26 [a'.

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strategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the limitations

on investigation.”27

The decision to rely on the record developed at the suppression hearing in
order to preserve that issue for appeal by proceeding with a bench trial is a strategic
one. Counsel avers that as a matter of practice the decision to agree to a bench trial
would have been clearly discussed with Defendant and that the consequences of
doing so would be evaluated Reviewing Counsel’s actions from their prospective
at the time the Court finds that they were reasonable lnformation regarding the
OCME scandal was not known until after Defendant’s conviction. In light of
information available to Counsel at the time strategic decisions were made in order
to most effectively represent Defendant throughout various proceedings before the
Court. Counsel’s actions were representative of rational professional judgement

and thus reasonable

Similarly, the Court conducted a colloquy with Defendant and found that his
decision to waive a trial by jury was knowing, intelligent, and voluntary. The
colloquy included having discussed the decision with his attorney and understanding

the benefits and potential repercussions of that decision. The decision to waive a

 

27 Stricklana’ v. Washington, 466 U.S. 668, 690~91(1984).

111

jury trial was made strategically with the advice of counsel. To claim now that the
decision to waive a trial by jury equates to ineffective assistance of counsel is to

apply the “distorting effects of hindsight” to a less than favorable outcome

Defendant’s claim fails the second prong of the Stricklana’ test as well.
Defendant has failed to offer any evidence that a more favorable outcome was
substantially likely but for the ineffective assistance of counsel Defendant claims
that repercussions stemming from the OCME scandal might be sufficient to
exculpate him, but fails to acknowledge that his motion for a new trial and
subsequent appeal to the Delaware Supreme Court were reviewed in light of the
Court’s holding in Irwin. Defendant’s proceedings after his trial are indicative of

the fact that he suffered no prejudice as a result of ineffective assistance of counsel.

Defendant cannot show that the State withheld evidence in violation of Brady.
This Court continues to hold that there can be no retroactive Brady violation for
failing to report what was not known. Defendant’s claims based on the fallout from

the situation at the OCME have failed to undermine the confidence of his guilty

verdict.

Defendant cannot show that Trial Counsel’s representation fell below an
objective standard of reasonableness Defendant has also failed to demonstrate that

any prejudice stemming from his counsel’s representation can overcome the

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overwhelming evidence of his guilt. The Defendant’s Motion for Postconviction

Relief pursuant to Rule 61 is hereby DENIED Without further proceedings

IT IS SO ORDERED.

ae//D

The Honorable C(alvin L. Scott, Jr.

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