IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
Plaintiff,

V. Cr. ID No. 1409020082

ALLEN FAIR,

Defendant.

Submitted: July 19, 2016
Decided: September 13, 2016

COMMISSIONER’S REPORT AND RECOMMENDATION THAT

DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF SHOULD
BE DENIED

John S. Taylor, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Allen Fair, H.R. Young Correctional Institute, Wilmington, Delaware, pro se.

MAYER, Commissioner

This 13th day of September, 2016, upon consideration of Defendant’s
Motion for Postconviction Relief it appears to the Court that:
BACKGROUND. FACTS AND PROCEDURAL HISTORY
l. On November 24, 2014, a grand jury indicted Defendant Allen Fair on the
charges of Possession of a Firearm or Ammunition by a Person Prohibited having
been convicted of a felony. The indictment stems from an incident which occurred
on September 26, 2014, when Officer Ham of the Wilmington Police Department
responded to shots fired in the area of Fifth and Washington Street and Fifth and
West Street.1 lt was alleged that Defendant was involved in an altercation and
fired shots. The next day, Officer Ham, along with other officers, went to an
address listed for Defendant taken from his probation records, 417 West Street, and
took him into custody. At the time, Defendant was standing on the second floor of
the apartment building. The officers conducted a search of the apartment and
found a loaded .38 revolver wrapped in a white sock on a shelf with several live
rounds of ammunition and a spent round nearby. In addition, court paperwork with
Defendant’s name on it was also found in the apartment During an interview with
the police that was video-taped, Defendant later admitted that the gun belonged to

him and accurately described the gun and its location.2

 

l Unless indicated otherwise, the facts herein were taken from Fair v. State, Delaware Supreme
Court Case No. 317, 2015 (hereinafrer “Fair at _”).
2

Id.

2. On June 9, 2015, the case proceeded to a bench trial after Defendant
stipulated to a waiver of a jury trial. At that time, the parties also entered into a
Stipulation of Fact and agreed that on or about September 26th and September 27th
of 2014, Defendant was a person prohibited by Delaware law from possessing,
owning or controlling a deadly weapon as defined under 11 Del. C. §222 and
prohibited from possessing, owning or controlling ammunition for a firearm.3

3. Prior to the commencement of the trial, Defendant, with the assistance of
counsel, presented a motion in limine and moved to suppress the video-taped
statement to the police. Defendant argued that the statement should be excluded
under Delaware Rule of Evidence 404(b) because he admitted that he fired the gun
the night before he was arrested but the charge of discharging a firearm was not
indicted.4 The Court denied the motion in limine for the reasons stated on the
record.

4. During the trial, on cross-examination, Officer Ham testified that no
fingerprint or DNA evidence was available for the gun and the police were unable
to determine who owned the building at 417 West Street.5 In addition, during
cross-examination, counsel for Defendant questioned Officer Ham about

Defendant’s living arrangements and the witness testified that the Defendant had

 

3 Defendant was previously convicted on July 28, 1998 of the charge of Possession with Intent to
Deliver a Controlled Substance, Cr. ID No. 9410007339.

4 Fair at p. 3; June 9, 2015 Trial Transcript, at pgs. 6-13 (hereinafcer “Tr. at ”).

5 Fair at p. 3.

an address of 32 Raven Turn.6 Defense counsel also questioned the witness with
respect to ownership of the apartment7 Further, Defendant’s counsel cross-
examined the witness as to whether Defendant appeared “drunk” during his
interview with the police.8 Defendant’s counsel later agreed to the admissibility of
the video-taped statement subject to the Court giving it the weight it deserves.9 At
the conclusion of the trial, the Defendant was found guilty of Possession of a
Firearm by a Person Prohibited and Possession of Ammunition by a Person
Prohibited.“’

5. Defendant was thereafter sentenced on June 9, 2015, to ten years of Level 5
incarceration, suspended after three years for two years of Level 3 probation.

6. On June 22, 2015, Defendant filed a notice of appeal.

7. On July 14, 2015, Defendant submitted a letter to the Court regarding his
mental health and treatment. In the letter, the Defendant states that the incident
happened at his office and the gun was found in his secretary’s apartment.
Defendant also states that he rented the first floor apartment but had keys to both

apartments The letter was treated as a motion for postconviction relief and

 

6 Tr. at pgs. 25-26.

7 Tr. at pgs. 25-28.

8 Tr. at pgs. 28-29.

9 Tr. at pg. 38.

10 Defendant also presented a Motion for Judgment of Acquittal on the ammunition charge that
was denied.

Defendant was notified that the motion may not be filed until the record has been
returned to this Court upon completion of the appeal.11

8. On November 9, 2015, the Supreme Court for the State of Delaware
affirmed the trial court judgment in part.12 The Supreme Court referenced the trial
court proceedings, including the motion in limine, and noted that during the
Court’s colloquy with the Defendant, he expressed concern about the search of the
apartment. The transcript reflects that counsel for Defendant had discussed the
search and a possible motion to suppress with the Defendant but decided that there
was no good faith basis for the motion because the Defendant was identified as the
person who fired the gun, he was on probation, and the 417 West Street address
appeared in his probation record.13

9. The Supreme Court summarized the issues on appeal as follows: “(i) police
officers did not have a warrant to search 417 West Street; and (ii) there was
insufficient evidence to support his convictions because there was no fingerprint or
DNA evidence tying him to the gun, there was no proof that he lived at 417 West
Street, and the gun was found in someone else’s apartment and did not belong to
him.”14 The Supreme Court held that (l) the search was valid and if the Defendant

had no relationship with the apartment where the gun was found as he claimed,

 

11 See super. Ct. crim R. 6i(b)(4).

12 CaseNo. 317,2015,1D 58217851.

13 Fair at p. 4; Tr. at pgs. 42-45. Defendant was also given the opportunity to testify in his
defense to address the issue of the search but declined the opportunity. Id. at 45.

14 Fair at p. 4.

then he lacked standing to contest the search; and (2) there was more than
sufficient evidence for a rational trier of fact to convict the Defendant of the
charges presented The Supreme Court further stated that it was “satisfied that
Fair’s counsel has made a conscientious effort to examine the record and the law

and has properly determined that Fair could not raise a meritorious claim in this

appeal.”15

10. On December 7, 2015, Defendant, appearing pro se, filed the instant Motion
for Postconviction Relief. Defendant raises ineffective assistance of counsel as his
basis for relief. However, the basis for the motion is Defendant’s argument that his
trial counsel, Mr. Joseph Leager, failed to suppress evidence. In summary,
Defendant argues that (l) trial counsel questioned the officer who testified that
there were no fingerprints or DNA on the weapon or ammunition but did not move
to suppress this evidence; (2) trial counsel failed to suppress a search of an
apartment unit that Defendant asserts belonged to a third-party and was not leased
by him; and (3) Defendant was under the influence of alcohol at the time he was
questioned and did not know he was being recorded, and trial counsel should have

obtained an expert to view the video to support his defense.

 

15 Fair at p. 6.

11. The record was enlarged and the Court received an Affidavit in Response
from Defendant’s trial counsel, Joseph M. Leager, Jr., as well as a response from
the State.

12. Mr. Leager attests that he had no good faith basis to file a suppression
motion based on counsel’s review of the evidence and relevant search and seizure
law. Mr. Leager also responds that he challenged the video pre-trial by way of a
motion in limine on both voluntariness grounds and credibility and felt there was
no good faith basis to believe an expert would opine that the interview was
involuntary or that Defendant was prompted to make a false confession

13. As to the first and second claims, the State argues that the warrantless
administrative search was supported by reasonable suspicion16 or the Defendant
lacks standing.17 As to the third claim, the State argues that prior to trial,
Defendant’s counsel reasonably attempted to exclude the videotaped confession
through a motion in limine that challenged the taped confession on the grounds of
voluntariness and credibility and counsel’s tactical decision not to hire an expert
was reasonable.18

14. On April 5, 2016, Defendant submitted a letter responding to Mr. Leager’s

Affidavit. Defendant referred the Court to a letter he submitted last year with

 

16 A search will be upheld Where the totality of the circumstances indicates that the officer had a
particularized and objective basis for suspecting legal wrongdoing. Sierra v. State, 958 A.2d 825
828 (Del. 2008).

11 Thomas v. Sza¢e, 467 A.2d 954, 958 (Dei. 1983).

111 Jackson v. Szare, 770 A.2d 506, 513 (Dei. 2001).

7

respect to his appeal. Defendant also filed his reply in support of his Rule 61
motion on July ll, 2016.

ANALYSIS OF DEFENDANT’S RULE 61 MOTION

15. Pursuant to Superior Court Criminal Rule 61(d)(5) the motion may be
summarily dismissed because it plainly appears from the record in the case that the
movant is not entitled to relief. Defendant’s motion is procedurally barred for
several reasons. As such, the Court should not consider the merits of the claim. 19
16. Defendant is attempting to restate and recouch the issues raised at trial and
on appeal as ineffective assistance of` counsel contentions The Court is not
required to re-examine claims that were already adjudicated on the merits simply
because the claim is now being presented as a claim for ineffective assistance of`
counsel unless it is in the interest of justice to do so.20 Defendant raises three
arguments in his motion; two of the arguments present a claim for ineffective
assistance of counsel for failing to move to suppress evidence f`rom the search and
the third raises ineffective assistance of counsel for failure to retain an expert with
respect to the video-taped statement. The Superior Court has already held, and the

Supreme Court has already affirmed, that the search was lawful. Defendant’s

 

19 YOtmger v. s¢a¢e, 580 A.2d 552, 554(13@1. 1990); Paul v. S¢a¢e, 2011 wL 3585623 at *1 (Dei.
Aug. 15, 2011), (“Delaware law provides that the Superior Court must first consider Whether the
defendant has satisfied the procedural requirements of Rule 61 before considering the merits of

his postconviction motion.”)
211 Johnson v. Sta¢e, 1992 WL 183069, at *1 (Dei. 1992); Duhadaway v. S¢a¢e, 877 A.2d 52 (Dei.

20051

claims again challenging the legality of the search are now procedurally barred by
Rule 6l(i)(4) as previously adjudicated

17. Defendant’s first two arguments presented in the motion are barred by
Superior Court Criminal Rule 61(1)(4) which provides that “[a]ny ground for relief
that was formerly adjudicated, whether in the proceedings leading to the judgment
of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas
corpus proceeding, is thereafter barred.” Defendant’s attempt to restate his first
two arguments as a claim for ineffective assistance of counsel does not warrant
reconsideration These issues were addressed both by this Court and by the
Supreme Court on appeal and are now barred.

18. Defendant’s third argument is barred by Superior Court Criminal Rule
61(i)(3), which provides that any ground for relief that was not asserted in the
proceedings leading to the judgment of conviction, is thereafter barred unless the
movant shows (A) cause for relief from the procedural default and (B) prejudice
from violation of the movant’s rights. In the present case, Defendant was afforded
the opportunity to raise the issue of retention of an expert and to testify on his own
behalf with respect to the claim of intoxication during the interview. Indeed,

Defendant’s counsel filed a motion in limine and attempted to exclude the video-

taped confession on several bases. 21 Defendant having not raised the issue of an
“expert” below is now procedurally barred from presenting it here.

19. The bars set forth in Rule 61 (i)(3) and (4) however will not apply to a claim
that the court lacked jurisdiction or to a claim that satisfies the pleading
requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of Rule 61 .22

20. Defendant has failed to meet the pleading requirements for proceeding with
the subject motion and therefore, the motion should be summarily dismissed for
these reasons as well. Superior Court Criminal Rule 61(d)(2)(i)-(ii) provides that a
motion under this rule shall be summarily dismissed unless the movant was
convicted after a trial and the motion either (i) pleads with particularity that new
evidence exists that creates a strong inference that the movant is actually innocent
in fact of the acts underlying the charges of which he was convicted; or (ii) pleads
with particularity a claim that a new rule of constitutional law, made retroactive to
cases on collateral review by the United States Supreme Court or the Delaware
Supreme Court, applies to the movant’s case and render the conviction or death
sentence invalid. Although Defendant was convicted after a bench trial, he has not

pled any new evidence or facts demonstrating any inference that he is innocent of

 

21 To the extent the legal issue was presented below by way of the motion in limine, it may
likewise be barred pursuant to Super. Ct. Crim. R. 61(1)(4). See also, Kirk v. State, 763 A.2d 91
(Del. 2000) (denying motion for postconviction relief on grounds that claims that videotaped
statement to police should have been suppressed was raised and resolved against defendant on
direct appeal and is therefore barred as formerly adjudicated).

22 super. Ct. crim. R. 61(1)(5).

10

the acts giving rise to the conviction. In fact the evidence presented by Defendant
is the same evidence and arguments presented to the trial court as well as to the
Supreme Court on appeal. Further, Defendant has not asserted that a new rule of
constitutional law affects his conviction. As such, Defendant has failed to meet the
pleading requirements of Rule 61(d)(2)(i)-(ii).

21. Defendant has not established any prejudice to his rights and/or cause for
relief. Defendant had time and opportunity to raise any issue on direct appeal and
was afforded a full and fair opportunity for consideration of the issues presented in
the motion during trial as well as on appeal.

22. Defendant merely re-couched his claims previously raised and adjudicated,
as ineffective assistance of counsel claims. Even if considered anew, Defendant’s
claims of ineffective assistance of counsel should be denied.23 Defendant claims
that his trial counsel was ineffective for not seeking the suppression of the search
and the videotaped statement. In order to prevail on an ineffective assistance of
counsel claim, a defendant must show that his counsel’s representation fell below
an objective standard of reasonableness and that but for the errors, there is a

reasonable probability that the outcome of the proceedings would have been

 

23 See, Malin v. State, 2009 WL 537060, at *5 (Del. Super. 2009) (ineffective assistance of
counsel claims are not procedurally barred because a Rule 61 motion is the appropriate vehicle
for raising these claims).

11

different.24 Defendant must overcome a strong presumption that counsel’s conduct
was reasonably professional under the circumstances25

23. During the proceedings, there was a colloquy with the Court whereby
Defendant discussed the search and a possible motion to suppress the evidence
obtained. However, Defendant’s counsel indicated there was no good faith basis
for the motion because the Defendant was identified as the person who fired the
gun, he was on probation, and the 417 West Street address appeared in his
probation record.26 Counsel for Defendant cross-examined Officer Ham regarding
the Defendant’s address, connections to the location searched and attempted to
create reasonable doubt as to the validity of the charge. Counsel also raised the
issue in closing arguments including the argument that there was no DNA or
forensics to support the charge.27

24. In addition to the above, prior to the start of the trial, the Defendant’s
counsel presented a motion in limine and attempted to exclude the video-taped
statement. Although the videotape was admitted into evidence, the Court agreed to
give it the weight it deserves. During the course of the trial, defense counsel cross-

examined Officer Ham at which point the witness denied that Defendant appeared

 

24 Szrzckland v. Washingzon, 466 U.s. 668, 687-88, 694 (1984); Hi¢chens v. S¢a¢e, 757 A.2d 1278

(Del. 2000).

25 State v. Wrigh¢, 653 A.2d 288, 293-94(¢113110113 emitted).

26 Fair at p. 4; Tr. at pgs. 42-45. Defendant was also given the opportunity to testify in his
defense to address the issue of the search but declined the opportunity. Id. at 45 .

27 Tr. at pgs. 47-49.
12

drunk, and testified that he did not smell liquor on the Defendant at the time of the
interview.28

25. The Defendant was provided an opportunity to testify on his own behalf to
contradict the witness’s testimony but elected not to do so.29 Defendant’s trial
counsel also emphatically argued, during closing, that the Defendant was “highly
intoxicated” at the time of the interview and attempted to raise a factual question as
to whether or not his admissions were true in order to create reasonable doubt as to
the believability of same.30 The Court’s ruling referred to the witness’s testimony,

the stipulation of fact and the exhibits presented and found “[t]here is no evidence

”31 Finaiiy,

that there was intoxication or impairment at the time of the interview.
in the Affidavit of Defendant’s Counsel, Mr. Leager explained that he challenged
the video by motion and there appeared no good faith basis to believe any expert
would opine that the interview was involuntary.

26. Trial counsel cannot be deemed ineffective for failing to pursue motions that
lack merit. Both the trial court and the Supreme Court have held that the search

was valid. The Supreme Court further stated that it was “satisfied that Fair’s

counsel has made a conscientious effort to examine the record and the law and has

 

23 Tr. at pgs. 28-29.
w Tr. at pgs. 41-45.
3" Tr. at pgs. 47-49.
jr Tr. at pgs. 51-52.

13

properly determined that Fair could not raise a meritorious claim in this appeal.”32

Moreover, great weight and deference are given to tactical decisions by the trial
attorney.33 In consideration of the facts and circumstances herein, Defendant has
failed to offer any basis for reconsideration of the claims or that the outcome of the
proceedings would have been different if counsel had moved to suppress the
evidence or retained an expert. Defendant has failed to rebut the presumption of
reasonable professional conduct under the circumstances

For all the foregoing reasons, Defendant’s Motion for Postconviction Relief

should be DENIED.

IT IS SO RECOMMENDED. /1
Commissioner Katharine L. Mayer 1_
oc: Prothonotary

cc: John S. Taylor, Esquire
Allen Fair

 

32 Fair at p. 6.
33 State v.Miller, 2013 WL 871320 at *4 (Del. Super. Feb. 26, 2013).

14

