      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE



STATE OF DELAWARE,                    )
                                      )
                   Plaintiff,         )
                                      )
                                      )
      v.                              )      Cr. ID. No. 1303017883
                                      )
                                      )
                                      )
ANTHONY L. DALE,                      )
                                      )
                   Defendant.         )


                          Date submitted: April 15, 2016
                           Date decided: April 19, 2016


      COMMISSIONER’S REPORT AND RECOMMENDATION ON
       DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF

Periann Doko, Esquire, Deputy Attorney General, Delaware Department of Justice,
820 N. French St. 7th Floor, Criminal Division, Wilmington, Delaware, 19801,
Attorney for the State.

Patrick J. Collins, Esquire, 716 North Tatnall Street, Suite 300, Wilmington,
Delaware 19801. Attorney for the Defendant.




MANNING, Commissioner
          This 19th day of April 2016, upon consideration of defendant Anthony L.

Dale’s motion for postconviction relief (“Motion”), I find the following:

                                   Procedural History

          On September 24, 2012, Dale was indicted on the following charges:

Possession of a Firearm by a Person Prohibited (11 Del. C. § 1448); Carrying a

Concealed Deadly Weapon (11 Del. C. § 1442); Possession of Ammunition by a

Person Prohibited (11 Del. C. § 1448); and Aggravated Possession (16 Del. C. §

4754(3)). Prior to trial, the State entered a nolle prosequi on the count of

Aggravated Possession.

          Following a two day jury trial, Dale was found guilty on February 25, 2014,

of Possession of a Firearm by a Person Prohibited, Carrying a Concealed Deadly

Weapon and Possession of Ammunition by a Person Prohibited. He was sentenced

on May 24, 2013, to four years at Level V followed by probation.

          Dale originally filed a timely pro se Rule 61 motion for postconviction relief

on July 31, 2014. Dale also filed a Notice of Appeal to the Delaware Supreme

Court but the appeal was dismissed on February 11, 2015, after he filed a Notice of

Voluntary Dismissal of Appeal. 1




1
    D.I. 43.


                                             1
          Pursuant to Superior Court Rule 132, Dale’s Motion was referred to a

Commissioner on July 10, 2015.             Conflict Counsel (“Rule 61 Counsel”) was

appointed to represent Dale on his Motion on October 10, 2015. 2

          On December 7, 2015, with the assistance of Rule 61 Counsel, Dale filed an

amended motion for postconviction relief. Trial Counsel did not file an Affidavit in

response to Dale’s Motion per this Court’s October 2, 2015, Scheduling Order.3

The State filed its response in opposition to Dale’s Motion on March 31, 2016.4

Dale filed a Reply to the State’s Response on April 15, 2016.

          Based upon my review of Dale’s Motion and the trial transcripts I do not see

the need for an evidentiary hearing. In my opinion, the arguments made by Dale in

his Motion can be adequately determined with the factual record created at trial.

Dale’s amended claims for postconviction relief are:

Ground one: Trial Counsel was ineffective for stipulating that Dale was a
person prohibited, resulting in prejudice to Dale.

Ground two: Trial Counsel was ineffective for failing to move to suppress
the gun found during the improper search; Dale suffered constitutional
prejudice.



2
 D.I. 47. By Order of the Delaware Supreme Court, dated November 20, 2014, Trial Counsel
was placed on Disability Inactive Status and is no longer a practicing member of the Delaware
Bar.
3
    D.I. 49.
4
    D.I. 57.



                                               2
                                        Legal Standard

          To prevail on an ineffective assistance of counsel claim, a defendant must

meet the two-pronged Strickland test by showing that: (1) counsel performed at a

level “below an objective standard of reasonableness” and that, (2) the deficient

performance prejudiced the defense. 5 The first prong requires the defendant to

show by a preponderance of the evidence that defense counsel was not reasonably

competent, while the second prong requires the defendant to show that there is a

reasonable probability that, but for defense counsel’s unprofessional errors, the

outcome of the proceedings would have been different.6

          When a court examines a claim of ineffective assistance of counsel, it may

address either prong first; where one prong is not met, the claim may be rejected

without contemplating the other prong. 7 Mere allegations of ineffectiveness will

not suffice; instead, a defendant must make and substantiate concrete allegations of

actual prejudice.8 An error by defense counsel, even if professionally unreasonable,




5
    Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
6
    Id.
7
    Id. at 697.
8
    Younger v. State, 580 A.2d 552, 556 (Del. 1990).



                                                 3
does not warrant setting aside the judgment of conviction if the error had no effect

on the judgment. 9

           In considering post-trial attacks on counsel, Strickland cautions that trial

counsel’s performance should be reviewed from his or her perspective at the time

decisions were being made. 10 A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting efforts of hindsight. Second

guessing or “Monday morning quarterbacking” should be avoided. 11

           The procedural requirements of Superior Court Criminal Rule 61 must be

addressed before considering the merits of any argument. 12 Dale’s Motion was

timely filed, is not repetitive, and neither of his arguments were previously

adjudicated in any forum. Therefore, Dale’s Motion is not procedurally barred

under Superior Court Crim. Rule 61(i)(1) - (4) so I will address each claim on its

merits.

                                          FACTS

           After closely reviewing the trial transcript, I find the following facts were

established at trial:


9
    Strickland, 466 U.S.at 691.
10
     Id.
11
     Id.
12
     See Younger, 580 A.2d at 554.



                                             4
          On June 19, 2013, Sergeant Looney of the Wilmington Police Department

was responding to a call regarding a group of disorderly subjects loitering in the

area of the 2300 block of North Carter Street in Wilmington, Delaware. The area

is known for high incidents of crime. 13 Sergeant Looney was wearing a standard

Wilmington police uniform and was driving an unmarked Ford Explorer SUV that

was outfitted with an emergency lighting package.14

          As Sergeant Looney drove down Carter Street, he observed a black male,

who he identified at trial as Dale, sitting in the front passenger seat of a parked

Nissan Altima. When Sergeant Looney’s car pulled parallel to the Altima, Dale

quickly laid his upper body over the center console and onto the driver’s seat area

with his arms on the driver’s floor area and his head on the steering wheel.

Finding this behavior suspicious, Sergeant Looney “squared” the block and drove

back down Carter Street. Again, Dale laid his upper body onto the driver’s seat

with his arms on the driver’s floor and his head on the steering wheel.

          Finding Dale’s actions suspicious, Sergeant Looney drove around the block

to drive past the vehicle for a third time. Once again, Dale laid down onto the

driver’s seat with his head on the steering wheel and his right arm and hand in the

foot-well area. At that point, Sergeant Looney parked his police vehicle slightly


13
     Tr. at 36.
14
     Tr. at 19.


                                          5
behind the Altima, turned his high-beam headlights on, and approached the

passenger side door on foot.

          Dale was observed peeking between the seats to get a look out of the back

window at Sergeant Looney as he approached. When Sergeant Looney reached the

passenger’s side door, he again observed Dale laying across the driver’s seat with

his hands on the driver’s floor. Using his flashlight to get his attention, Sergeant

Looney asked Dale to sit up and open the vehicle door. Dale complied, opening the

passenger’s side door, and then handed Sergeant Looney his Delaware

identification card upon request.      Sergeant Looney testified that Dale seemed

nervous and “was very hesitant in his responses and just seemed to be looking

around his, he was clearly, like, oh, no, the police are here.”15 At some point during

the encounter officers learned that the vehicle was not registered to Dale or anyone

with the same surname. 16

          Due to Dale’s nervousness and his behavior inside of the vehicle, Sergeant

Looney asked him to exit the vehicle. While this was occurring, another officer,

Officer Ham, opened the driver’s door and checked the floor area where Dale’s

hands had been observed on the prior occasions. Dale was not handcuffed or

physically restrained during this portion of the encounter. Officer Ham could see


15
     Tr. at 30.
16
     Tr. at 31.


                                           6
that there was something under the driver’s floor mat as it was folded and did not

sit “flush” to the floor. When Officer Ham lifted the floor mat he immediately

observed a loaded .22 caliber semi-automatic handgun. A criminal history check

of Dale revealed that he had a prior felony conviction for Possession with Intent to

Deliver a Schedule II Controlled Substance from 2007.

         Dale was immediately searched and taken into custody. Subsequent DNA

testing by the State revealed a mixed DNA profile on the gun, but with male DNA

present. Dale’s DNA could neither be included nor excluded. Fingerprint testing

of the gun was inconclusive.

             Ground One: Stipulating that Dale was a Person Prohibited

           Dale argues that Trial Counsel was ineffective because he stipulated that

Dale was a person prohibited—as opposed to moving to sever the charge

altogether. By stipulating, Dale argues, the jury learned that he was prohibited and

this left them “free to speculate as to why” and to “draw the impermissible

conclusion that [he] was a person of bad character with a general criminal

disposition.”17 Dale also argues that this stipulation “likely confused the jury” as he

was not in direct possession of a firearm. Dale argues that “[n]o trial strategy

exists that would justify admitting to the jury in a weapons case that the defendant




17
     Motion at 14.


                                           7
is prohibited. That is why it is routine practice [in this Court] to sever the person

prohibited charge… .” 18

           The State argues that Dale was not prejudiced by Trial Counsel’s decision

to stipulate and that it was a reasonable tactical decision. By stipulating that Dale

was prohibited, the State argues that Trial Counsel sought to “sanitize” the

indictment and minimize any prejudice that would be created if the jury learned of

Dale’s 2007 conviction for Possession with Intent to Deliver Cocaine.

           Additionally, the State argues that “the evidence [of the prior conviction]

would have been admissible regardless of the stipulation.” 19 With this point I

cannot so readily agree. As correctly noted by Rule 61 Counsel, the trial court

would have first needed to conduct a balancing test pursuant to Delaware Rule of

Evidence 609(a)(1) before the conviction could have been used by the State to

impeach Dale, and even then, only if he testified.

           I recognize that there are contexts in which sanitizing an indictment, as

opposed to moving to sever, may make tactical sense. For example, the defendant

who fully expects to testify and counsel knows he will be cross-examined about

prior convictions anyway. In such cases, the Court will usually issue an appropriate

limiting instruction to the jury about how to consider such evidence. However,


18
     Id.
19
     Response at 7.


                                            8
under the facts of this case, I can discern no reasonable trial strategy for not

moving to sever the Person Prohibited charge completely. Simply put, Dale had

nothing to lose by moving to sever the charge to a separate trial, but much to gain.

Trial Counsel’s stipulation was a half-measure—at best.

          The Superior Court almost universally grants motions to sever such charges

due to the inherent prejudice created when the jury learns that a defendant has a

prior felony conviction.           Trial Counsel’s failure to move to sever the Person

Prohibited charge was professionally unreasonable under the fats of this case and

constituted ineffective assistance of counsel.

          Although Trial Counsel’s representation of Dale was unreasonable, before a

conviction can be overturned, Strickland requires that there is a “reasonable

probability” that the outcome of the trial would have been different but for Trial

Counsel’s professional errors. 20 The facts in this case show that Dale was sitting in

the front passenger seat of a car that did not belong to him, at night, in a high crime

area, a block or so away from his house while acting in a manner most people

would find suspicious. Upon investigation by the police, a handgun was found in

close proximity to where Dale was seen repeatedly reaching. It appears that the

jury reasonably concluded that Dale hid the gun under the driver’s side floor mat




20
     Strickland, 466 U.S.at 691.


                                               9
(or was retrieving it) when Sergeant Looney drove past each time and then, finally,

approached Dale on foot.

          The question that must be addressed then becomes: is there a “reasonable

probability” the jury would have acquitted Dale had they not know he was

prohibited? To be clear, this is a close call in my opinion. However, I must

conclude that while there is a possibility Dale would have been acquitted, there is

not a reasonable probability of it.          Under Strickland, “probability” does not mean

a mere “possibility”—it is a higher standard. In Neal v. State, the Delaware

Supreme Court expounded on the Strickland prejudice burden of proof analysis:

          A reasonable probability of a different result requires a probability
          sufficient to undermine confidence in the outcome. Although this
          standard is not mathematically precise and does not necessarily require
          a showing of more likely than not, Strickland requires more than a
          showing merely that the conduct could have or might have or it is
          possible that it would have led to a different result. The likelihood of a
          different result must be substantial, not just conceivable.21


          In the context of Dale’s very unusual behavior and the fact that he seemed to

be reaching or looking for something in the driver’s foot-well area of the car each

time Sergeant Looney drove past, combined with his nervous behavior once

approached by the police, I do not think it likely that the outcome of Dale’s trial

would have changed had the jury not known he was prohibited. Trial Counsel’s



21
     Neal v. State, 80 A.3d 935, 942 (Del. 2013) (internal quotations and citations omitted).


                                                  10
failure to sever the Person Prohibited charge was objectively unreasonable—

however, it did not prejudice Dale.

                       Ground Two: Failure to file a suppression motion

          Normally, Trial Counsel will file an affidavit with the Court explaining why

he or she elected not to file a motion to suppress. Typically, the explanation is that

counsel felt there was no good faith basis to do so. In this case, however, Trial

Counsel’s thinking and reason for not filing a suppression motion is unknown. To

that point, I will skip the first prong of Strickland and simply presume that Trial

Counsel’s failure to file a motion to suppress in this case was objectively

unreasonable.

          As previously noted, Strickland requires that Trial Counsel’s unreasonable

conduct resulted in actual prejudice to Dale before his conviction will be

overturned. Therefore, the question becomes: is there a reasonable probability that

a motion to suppress would have been successful and change the outcome of the

case? I note that the search and seizure in this case was warrantless, thus the onus

would have been on the State to show by a preponderance of the evidence that the

search was reasonable 22—advantage Dale. Additionally, a successful motion to

suppress as to the gun would have been case dispositive, except for the drug charge

which the State dropped prior to trial.

22
     See Hunter v. State, 783 A.2d 558, 560 (Del. 2001).



                                                 11
          As I see it, there are two distinct issues that need to be addressed: (1) the

search and seizure of Dale himself; and (2) the search of the car.

                                            Issue One

          Sergeant Looney’s decision to approached Dale, asked him for his

identification and question him was reasonable in light of the circumstances

present; namely Dale’s unusual and repeated behavior. In my opinion, Sergeant

Looney conducted a valid “Terry-stop” pursuant to 11 Del. C. § 1902. 23 The trial

record does not address why Sergeant Looney felt the need to search Dale, but it is

irrelevant since the charge relating to the contraband found on Dale was dropped

prior to trial. Additionally, it is also important to note that Officer Ham’s search of

the driver’s side of the car was nearly simultaneous to Sergeant Looney’s

questioning, was not a search incident to Dale’s arrest and does not appear

motivated by anything other than officer safety. 24 Even if the decision to search

Dale’s person was unreasonable, it had no effect on the outcome of the case as the




23
  § 1902 Questioning and detaining suspects. (a) A peace officer may stop any person abroad,
or in a public place, who the officer has reasonable ground to suspect is committing, has
committed or is about to commit a crime, and may demand the person's name, address, business
abroad and destination. (b) Any person so questioned who fails to give identification or explain
the person's actions to the satisfaction of the officer may be detained and further questioned and
investigated. (c) The total period of detention provided for by this section shall not exceed 2
hours. The detention is not an arrest and shall not be recorded as an arrest in any official record.
At the end of the detention the person so detained shall be released or be arrested and charged
with a crime.
24
     Tr. at 30.


                                                 12
weapon was located as part of a contemporaneous, but independent, search of the

vehicle.

                                            Issue Two

          The State argues that the search of the vehicle was justified on grounds of

officer safety, and even if it was not, Dale lacked standing to object to the search. I

agree with the State on the both points.

          The facts indicate that while being questioned, Dale was not restrained and

easily could have gained access to the interior of the vehicle and any items within.

Because of Dale’s actions, it was certainly reasonable for the officers to be

concerned about what was under the floor mat and to conduct a cursory search of

the car interior for any weapons that might be used against them. This fact is

especially true in light of what appeared to be an object visible under the driver’s

side floor mat prior to the search. Even if a reviewing court were to disagree with

my conclusion on this issue, I believe it would not change the outcome of the case

as Dale lacked standing to object to the search of the car in any event.

          In order to have standing, Dale must “demonstrate [a] legitimate expectation

of privacy in the invaded place before he may challenge the validity of a search or

seizure.” 25 In the context of an automobile, typically this means being the owner

or an operator in legitimate possession of the car. It is well established law that a

25
     Mills v. State, 2006 WL 1027202, at *1 (Del. 2006).


                                                 13
mere passenger in a car typically lacks standing to object to a search of the car

itself. 26 Here, there is no evidence in the trial record, or supplemented by Rule 61

Counsel, to show that Dale was either. In fact, the record strongly suggests that

Dale was a trespasser in the vehicle.

          Dale argues in his Reply that “if the passenger is seized personally as a

result of the stop, then he has standing to object to the seizure… .” 27 Dale cites to

Rakas v. Illinois, supra, to support his argument.                 The problem with Dale’s

argument, however, is that the police did not actually “stop” the car he was hiding

in—it was parked on a public street.                 The police did not seize Dale in the

traditional “car stop” sense; rather, they simply ordered him to step out of the

passenger seat of an already stopped car. The fact that Dale was in a car almost

becomes irrelevant to the 4th Amendment analysis. The basic analysis, however,

remains the same: did Dale have a reasonable expectation of privacy in whatever

area the police searched—be it a trashcan, sidewalk, park bench or the front porch

to a residence? In this case, the answer is still the same: no.

          Without proof that Trial Counsel reasonably could have established

standing, Dale would most likely have lost a suppression motion as to the car.




26
  See Jarvis v. State, 600 A.2d 38, 41 n. 1 (Del. 1991) (citing Rakas v. Illinois, 439 U.S. 128,
(1978).
27
     Reply at 6.


                                                14
Therefore, Dale was not prejudiced by Trial Counsel’s failure to file a motion to

suppress.

                                   Conclusion

      Trial Counsel’s failures were professionally unreasonable and constituted

ineffective assistance of counsel. However, they ultimately did not prejudice Dale

nor undermine confidence in the reliability of his trial. For the foregoing reasons,

Dale’s Motion should be DENIED.

IT IS SO RECOMMENDED.




                                                   /s/ Bradley V. Manning
                                                   BRADLEY V. MANNING,
                                                   Commissioner



oc:   Prothonotary
cc:   Defendant




                                        15
