IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE In and for Kent County
ID No. 1502003769

v.
RK15-02-0485-01 Rape 4th (F)
JAQUAN L. HARRIS, RK15-02-0486-01 Consp 2nd (F)

Defendant.

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COMMISSIONER'S REPORT AND RECOMMENDATION

Upon Defendant's Motion for Postconviction Relief
Pursuant to Superior Court Criminal Rule 61

Kathleen A. Dickerson, Esquire, Deputy Attorney General, Department of J ustice, for
the State of Delaware.

EdWard C. Gill, Esquire, Georgetown, Delaware for Defendant.

FREUD, Cornmissioner
November 30, 2017

The Defendant, Jaquan L. Harris (”Harris”) pled guilty on September 16, 2015
to one count of Rape in the Fourth Degree, a lesser-included offense of Rape in the
Second Degree Without Consent, ll Del. C. § 770 and one count of Conspiracy in
the Second Degree, 11 Del. C. § 512. The parties requested a pre-sentence report.
On November 10, 2015 the Court sentenced Harris to eleven total years at Level V

incarceration, suspended after serving nine months at Level V, followed by six

State v. Jaquan L. Harris
ID No. 1502003769
November 30, 2017

months at Level IV, followed by one year at Level III probation. Harris is currently
scheduled to complete his probation period on December 5, 2017. Had Harris gone
to trial and been found guilty of each of the charges, he faced a minimum mandatory
sentence of ten years in jail up to a potential of twenty-seven years incarceration.
Harris did not appeal his conviction or sentence to the State Supreme Court. On
January ll, 2016, Harris filed his first pro se Motion for Postconviction Relief
pursuant to Superior Court Criminal Rule 61, alleging ineffective assistance of
counsel. A briefing schedule was set on Harris’ pro se motion and prior counsel and
the State responded to Harris’ allegations. Prior to Harris filing his Reply, Edward
C. Gill, Esquire entered his appearance on behalf of Harris on March 9, 2017 and
requested additional time to file an amended postconviction motion on Harris’ behalf.
The request was granted and a new briefing schedule was issued. Briefing has now
completed and the matter is ripe for decision.
FACTS
The following is a summary of the facts of the case as outlined by the State in
their response to Harris’ amended motion for postconviction relief and corroborated
by the Search warrant and arrest warrant’s Affidavit of Probable Cause.

On October 25, 2014, Alyssa Stanley (“Victim”) sought
medical treatment at Union Hospital in Elkton, Maryland
after a sexual assault. A forensic nurse at the hospital
examined the Victim and completed an evidence
collection kit. Detective Fox of the Smyrna Police
Department responded to the hospital and interviewed the
Victim. She informed Detective Fox that she had been in
a relationship with Harris and that she had plans to meet

State v. Jaquan L. Harris
ID No. 1502003769
November 30, 2017

him at his house earlier that day. She told the detective
that she arrived at Harris’ after midnight and went to his
bedroom with him. She recounted that she and Harris
had sexual intercourse once. Later they started to have
sex a second time but Harris stopped in the middle of
(sic) and told her that he needed to get a condom.
Victim, who was facing the wall, waited in the dark
bedroom for Harris’ return. Someone, who she presumed
to Harris, re-entered the room and intercourse resumed.
A condom broke and the male having intercourse with
Victim remarked that he would “ get another condom.”
Victim, realizing that she did not recognize the voice,
discovered that the male she was having sex with was not
Harris. Victim became upset, screamed, struck the
unknown male, got dressed and left the house.

Based on the information provided by the Victim, officers
with the Smyrna Police Department obtained a search
warrant for Harris’ residence.1 Two empty condom
packets and bedding were seized. When the officers
executed the search warrant, Harris answered the door
and Victim’s identification card was seized from his
pocket. Harris Was transported to Smyrna Police
Department and provided a post-Miranda statement.
During this statement Harris admitted that he had sexual
intercourse with Victim and then sent his friend Kevaughn
Peacock into the room with instructions to pretend to be
Harris so he could have sex with Victim. Arrest warrants
were obtained for Harris on February 10, 2015.2

 

1 State v. Harris, Del. Super., ID No. 1502003769, DI 44.

2 Id.

State v. Jaquan L. Harris
ID No. 1502003769
November 30, 2017

Harris’ CONTENTIONS
In his original, pro se motion Harris raised the following grounds for relief:
Ground one: Not informed of his right to counsel while

being questioned by the police.

Ground two: A Fourth Amendment violation occurred
when police “left behind” a live surveillance
device.

Ground three: Coerced Guilty Plea.

Ground four: Ineffective assistance of counsel for not
raising grounds l - 3 earlier.

In the amended motion filed by Mr. Gill an additional ground was raised as

follows :

Ground five: That Harris was illegally arrested on
October 25, 2014 without a warrant
and therefore trial counsel should have
filed a motion to suppress Harris’
statement to the police and his failure
to file a suppression motion amounted
to ineffective assistance of counsel.

DISCUSSION

Under Delaware law, this Court must first determine whether Harris has met

the procedural requirements of Superior Court Criminal Rule 61(1) before it may

State v. Jaquan L. Harris
ID No. 1502003769
November 30, 2017

consider the merits of his postconviction relief claim.3 This is Harris’ first motion for
postconviction relief, and it was filed within one year of his conviction becoming
final. Therefore, the requirements of Rule 61 (i)(l) - requiring filing Within one year
and (2) - requiring that all grounds for relief be presented in initial Rule 61 motion,
are met. None of Harris’ claims were raised at the plea, sentencing, or on direct
appeal. Therefore, they are barred by Rule 6 l (i)(3), absent a demonstration of cause
for the default and prejudice. To some extent each of Harris’ claims are based on
ineffective assistance of counsel; therefore, he has alleged cause for his failure to
have raised them earlier.

At this point, Rule 6l(i)(3) does not bar relief as to Harris’ grounds for relief,
provided he demonstrates that his counsel was ineffective and that he was prejudiced
by counsel’s actions. To prevail on his claim of ineffective assistance of counsel,
Harris must meet the two-prong test of Strickland v. Washingt‘on.4 In the context of
a guilty plea challenge, Stricklana' requires a defendant show: (l) that counsel’s
representation fell below an objective standard of reasonableness; and (2) that
counsel’s actions were prejudicial to him in that there is a reasonable probability that,
but for counsel’s error, he would not have pled guilty and would have insisted on
going to trial and that the result of a trial would have been his acquittal.5 The failure

to establish that a defendant would not have pled guilty and would have proceeded

 

3 Bailey v. srare, 588 A.2d 1121, 1127 (De1. 1991).
4 466 U.s. 668 (1984).

5 Id. at 687.

State v. Jaquan L. Harris
ID No. 1502003769
November 30, 2017

to trial is sufficient cause for denial of relief.6 In addition, Delaware courts have
consistently held that in setting forth a claim of ineffective assistance of counsel, a
defendant must make concrete allegations of actual prejudice and substantiate them
or risk summary dismissal.7 When examining the representation of counsel pursuant
to the first prong of the Stricklana' test, there is a strong presumption that counsel’s
conduct Was professionally reasonable8 This standard is highly demanding9
Strickland mandates that, when viewing counsel’s representation, this Court must
endeavor to “eliminate the distorting effects of hindsight.”10

Following a complete review of the record in this matter, it is abundantly clear
that Harris has failed to allege any facts sufficient to substantiate his claim that his
attorney was ineffective.

Turning briefly to Harris’ specific claims he first asserts that the police did not
inform him of his Mirana'a rights during his interrogation The evidence shows that
this claim is false. A transcript of Harris’ recorded statement to the police proves that

Detective Fox read Harris his Miranda rights and the he indicated that he understood

 

6 Somerville v. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53,
60 (Del. 1988))(citations omitted).

7 See e.g. , 0utten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995
WL 466465 at *1 (Del. Supr.)).

8 Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689).

9 Flamer v. State, 58'5 A.2d 736, 754 (Del. l990)(quoting Kimmelman v. Morrl`son, 477
U.S. 365, 383 (1986)).

10 Strickland, 466 U.S. at 689.

State v. Jaquan L. Harris
ID No. 1502003769
November 30, 2017

his rights and wished to speak to the detective.ll The affidavit of Trial Counsel
concurs with this assessment Harris’ conclusory allegation has provided no proof
that this was anything but a knowing and voluntary waiver of his rights. Harris’
claim must fail under Superior Court Criminal Rule 6l(i)(3), as he failed to asserted
this ground for relief prior to his plea nor has he shown a cause for relief or prejudice
from the alleged violation.12

Harris’ second claim is that a Fourth Amendment violation occurred when law
enforcement left electronic surveillance equipment in his home. The State denies this
allegation. The State was not aware of any listening or recording devices being left
by the police in Harris’ home. The Crime Report makes no mention of a listening
device or of any conversations that may have been intercepted from such device.13
Furthermore, Trial Counsel states in his affidavit that there was not any evidence to
substantiate this claim. As Harris has failed to make any showing that this listening
device existed, his claim must fail.14

Harris’ third claim asserts that he was coerced into taking the guilty plea by his
attorney. Harris alleges that he felt pressured to enter a plea to the lesser included

offense of Rape in the Fourth Degree because he was unaware that his Constitutional

rights had been violated. The affidavit of Trial Counsel states that counsel explained

 

11 State v. Harris, Del. Super., ID No. 1502003769, DI 33.
12 State v. Alston, 2014 WL 7466536 (Del. Super. Dec. 16, 2014), at *4.
13 State v. Harris, Del. Super., ID No. 1502003769, DI 33.

14 Alston, at *4.

State v. Jaquan L. Harris
ID No. 1502003769
November 30, 2017

the evidence and evidentiary burdens associated with each charge to Harris. Trial
Counsel also avers that he explained to Harris that Rape in the Second Degree, the
charge for which he was indicted, carried a minimum mandatory sentence often years
at Level V. The plea offer was to Rape in the Fourth Degree, which did not carry a
minimum mandatory sentence. At the time of the Plea, Harris completed the “Truth-
in-Sentencing Guilty Plea Form” and verbal plea colloquy on the record. Harris
indicated that he Was “freely and voluntarily” deciding to plea guilty. Furthermore,
when asked whether his “lawyer, the State or anyone threatened or forced” him to
enter his plea, he indicated “no.”15 As there is no proof that Harris’ guilty plea was
not knowing and voluntary, this Rule 61 claim is meritless.

Harris’ fourth claim alleges ineffective assistance of counsel. This appears to
be a blanket allegation relating to Trial Counsel’s failure to file suppression motions.
As stated above at claim l and 2, there is no evidence of constitutional violations that
would have given rise to suppression issues based upon Miranda.

Harris’ fifth claim alleges that he was subject to an illegal arrest on October 25,
2015 and that his incriminatory statement was a direct result of this violation. Harris
claims that but for his incriminatory statement, the State would not have proceeded
to trial and he would not have been convicted. Harris’ argument is misplaced as the
police had ample evidence to detain him for questioning based upon the facts of the

CaSC.

 

15 State v. Harris, Del. Super., ID No. 1502003769 (Sept. 16, 2015) Tr. at 6., See State
V. Zil`tingel', 2010 WL 8250803 (Del. Super. Apl`. 15, 2010).

8

State v. Jaquan L. Harris
ID No. 1502003769
November 30, 2017

In New York v. Harris,16 the United States Supreme Court examined a similar
but factually distinct case. New York v. Harris involved the police’s illegal entry into
a suspect’s home, followed by a warrantless arrest based on probable cause, and a
post-Miranda statement. Refusing to suppress the post-Miranda statement as “fruit
of the illegal arrest,” the Court held that “where the police have probable cause to
arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made
by the defendant outside of his home, even though the statement is taken after an
arrest made in the horne in violation of” the Constitution.17 Similarly, when an arrest
is deemed not to have occurred, the United State Supreme Court has held that: “a
police officer may conduct a brief`, investigatory detention of an individual based on
the officer’s reasonable and articulable suspicion that criminal activity is afoot.”18
“Reasonable suspicion must be evaluated in the context of the totality of the
circumstances as viewed through the eyes of a reasonable trained police officer in
the same or similar circumstances, combining objective facts with such an officer’s

subjective interpretation of those facts.”19 In Terry v. 0hi020 the United State

Supreme Court held that the Officer acted reasonably when patting down the

 

16 495 U.S. 14 (1990).
17 Id. At 21.

18 State v. Harris, ID No. 1602006736, 2016 WL 4006354 (Del. Super. July 25, 2016)
(citing Terry v. Ohl`o, 392 U.S. l, 3 (1968)).

19 Id. at *4.

20 392 U.S. 1 (1968).

State v. Jaquan L. Harris
ID No. 1502003769
November 30, 2017

Defendant based on the hypothesis that the Defendant was contemplating a daylight
robbery.21 “Reasonable suspicion is a less demanding standard compared to probable
cause and only requires a showing considerably less than preponderance of the
evidence.”22 For instance, in State v. Harris (unrelated to the defendant in this case),
the Court held that the Officer had sufficient reasonable and articulable suspicion to
perform an investigatory stop based on a consensual encounter on the behalf that the
Defendant was the unidentified suspect from a shooting incident.23

The police were in Harris’ house because they had secured a search warrant for
his residence, This search Warrant was reviewed and approved by Justice of the
Peace Court 7 prior to law enforcement’s entry into Harris’ home. This was not an
instance of a warrantless search of a residence. As the Search Warrant demonstrates,
there was probable cause for the search based upon the details of the assault as
described by the Victim. This sexual assault, which lists Harris as a suspect, was the
only reason provided for the search. The magistrate reviewed the allegations and
concluded that there was probable cause to issue the search warrant. In the instant
matter, the Victim identified Harris as the perpetrator and a Search Warrant was
issued for his house. The police had probable cause for an arrest, if they chose to
exercise it, based upon the victim’s statement. Once at the residence, the Victim’s

identification card was found on Harris. The Officers also collected various items

 

21 Id. at *3.
22 Woody v. State, 765 A.2d 1257, 1263 (Del. 2001).
23 State v. Harris, ID No. 1602006736, 2016 WL 4006354 (Del. Super. July 25, 2016).

10

State v. Jaquan L. Harris
ID No. 1502003769
November 30, 2017

from the house as evidence: balled up bed sheets, an open box of Magnum brand
condoms with only two condoms of three left, and one open Durex brand condom
wrapper. This evidence corroborated and strengthened the evidence the police
already had against Harris, adding to the probable cause to arrest Harris. Even if the
evidence did not reach the level of probable cause, the officers had specific and
articulable facts combined with rational inferences that reasonably warranted the
intrusion. Therefore, even assuming, the Victim’s identification card was not found,
under the totality of the circumstances, the Officers had reasonable suspicion to stop
Harris. Similarly to Harris, the Officer had a consensual interaction when Harris
answered the door. Already in custody, the Officer advised Harris of his Miranda
rights and was soon released after his statement.24

As noted, Harris was facing the possibility of over ten years minimum
mandatory j ail time had he been convicted, and the sentence and plea were extremely
reasonable under all the circumstances, especially in light of the overwhelming
evidence against him. Prior to the entry of the plea, Harris and his attorney discussed
the case. The plea bargain was clearly advantageous to Harris. Counsel’s
representation was certainly well within the range required by Stricklana'.
Additionally, when Harris entered his guilty plea, he stated he was satisfied with

defense counsel’s performance He is bound by his statement unless he presents clear

 

24 State v. Harris, ID no. 1602006736, 2016 WL 4006354 (Del. Super. July 25, 2016).

ll

State v. Jaquan L. Harris
ID No. 1502003769
November 30, 2017

and convincing evidence to the contrary.25 Consequently, Harris has failed to
establish that his counsel’s representation was ineffective under the Strickland test,

Even assuming, arguendo, that counsel’s representation of Harris was
somehow deficient, Harris must satisfy the second prong of the Strickland test,
prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant
must make concrete allegations of actual prejudice and substantiate them or risk
dismissal.26 In an attempt to show prejudice, Harris simply asserts that his counsel
was ineffective and states that he would not have pled guilty had his confession been
suppressed. However, it is merely speculation on his part that had he gone to trial and
his confession not been admitted that he would have been found not guilty. Clearly
the testimony of the victim and his co-defendant would have been strong evidence
against him even without his confession. His statements are insufficient to establish
prejudice, particularly in light of the evidence against him. Therefore, I find Harris’
grounds for relief are meritless.

To the extent that Harris alleges his plea was involuntary, the record
contradicts such an allegation. When addressing the question of whether a plea was

constitutionally knowing and voluntary, the Court looks to a plea colloquy to

 

25 Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.)(citing Sullivan v. State, 636 A.2d
931, 937-938 (Del. 1994)).

26 Larson v. State, 1995 WL 389718, at *2 (Del. Supr.)(citing Younger, 580 A.2d 552,
556 (Del. 1990)).

12

State v. ]aquan L. Harris
ID No. 1502003769
November 30, 2017

determine if the waiver of constitutional rights was knowing and voluntary.27 At the
guilty-plea hearing, the Court asked Harris whether he understood the nature of the
charges, the consequences of his pleading guilty, and whether he was voluntarily
pleading guilty. The Court asked Harris if he understood he would waive his
constitutional rights if he pled guilty; if he understood each of the constitutional
rights listed on the Truth-in-Sentencing Guilty Plea Form (“Guilty Plea Form”); and
whether he gave truthful answers to all the questions on the form. The Court asked
Harris if he had discussed the guilty plea and its consequences fully with his attorney.
The Court asked Harris if he was entering into the plea because he was guilty of the
charges The Court also asked Harris if he was satisfied with this counsel’s
representation. Harris answered each of these questions affirmatively.28 I find
counsel’s representations far more credible than Harris’ self-serving, vague
allegations

Furthermore, prior to entering his guilty plea, Harris signed a Guilty Plea Form
and Plea Agreement in his own handwriting Harris’ signatures on the forms indicate
that he understood the constitutional rights he was relinquishing by pleading guilty
including the right to have evidence suppressed and that he freely and voluntarily
decided to plead guilty to the charges listed in the Plea Agreement. Harris is bound

by the statements he made on the signed Guilty Plea Form, unless he proves

 

27 Godinez v. Moran, 509 U.S. 389, 400 (1993).

26 State v. Harris, Del. Super., ID No. 1502003769 (Sept. 16, 2015) Tr. at 3-9.

13

State v. Jaquan L. Harris
ID No. 1502003769
November 30, 2017

otherwise by clear and convincing evidence.29 I confidently find that Harris entered
his guilty plea knowingly and voluntarily and that Harris’ grounds for relief are
completely meritless
CONCLUSION

I find that Harris’ counsel represented him in a competent and effective manner
and that Harris has failed to demonstrate any prejudice stemming from the
representation. l also find that Harris’ guilty plea was entered knowingly and
voluntarily. I recommend that the Court deny Harris’ motion for postconviction relief

as procedurally barred and completely meritless

/s/ Andrea M F`-reurl
Commissioner

AMF/dsc

 

29 Sommerville, 703 A.2d at 632.

l4

