IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

)

V. ) I.D.No.  1212003086A

)

)

DEWAYNE MCNAIR, )
)

Defendant. )

ORDER

Submitted: May 18, 2020!
Decided: August 7, 20207

Upon Consideration of the Commissioner’s Report and Recommendation on
Defendant's Motion for Postconviction Relief,
ADOPTED.

Upon Consideration of Defendant’s Appeal from the Commissioner’s
Report and Recommendation on Defendant’s Motion for Postconviction Relief,
DENIED.

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

Christopher S. Koyste, Esquire of Law Office of Christopher Koyste, LLC,
Wilmington, Delaware. Attorney for Defendant.

MEDINILLA, J.

 

' The Court reviews Defendant’s submission of May 18, 2020 as a supplement to his Motion for

Postconviction Relief, where he asks this Court “look at [his] entire case, from the police affidavit
to the end of trial[,]” requesting to be “released[.]” Defendant’s Motion for Modification of

Sentence, State of Delaware v. DeWayne McNair, ID No. 1212003086A, D.I. 89 (Del. Super. Ct.
May 18, 2020) [hereinafter the Court will refer to docket numbers].
? The judicial emergency declaration due to the COVID-19 pandemic, “[was] extended for another
30 days effective July 8, 2020... .” See ADMINISTRATIVE ORDER NO. 8 EXTENSION OF JUDICIAL
EMERGENCY (Del. July 6, 2020).
AND NOW TO WIT, this 7" day of August, 2020, upon consideration of
Defendant, DeWayne McNair’s (“Defendant”) Motion for Postconviction Relief,
the Commissioner’s Report and Recommendation, Defendant’s Appeal from the
Commissioner’s Report, the State’s Response to Defendant’s Appeal, Defendant’s
Supplemental Filing in Closing, the sentence imposed upon Defendant, and the
record in this case, it appears to the Court that:

I. FACTUAL AND PROCEDURAL BACKGROUND?

1. Defendant is a declared habitual criminal offender. In the criminal
justice system since 1998, he has a violent criminal history that primarily involves
drugs and firearms.‘ Two separate juries heard evidence that forms the bases of this
Motion.

Z. The evidence established that on December 5, 2012, Defendant was
driving a rental car when he was stopped by Wilmington Police at 8" and Spruce
Street in Wilmington. He was the only occupant in the car. Officers took him into
custody and his vehicle was driven back to the Wilmington Police Department.

During an administrative search, police discovered a loaded semi-automatic

 

3 This Court’s recitation is based on the Defendant’s Sentencing Transcript, all of Defendant’s
pleadings as they relate to his Amended Motion for Postconviction Relief, the State’s
corresponding responses, the Evidentiary Hearing Transcript, the Commissioner’s Report and
Recommendation, Defendant’s Appeal, and the State’s Response thereto.

* Defendant’s prior convictions included Possession with Intent to Deliver Heroin (1998), Robbery
First Degree (2001), Possession of a Firearm During Commission of a Felony (2001), Assault
Second Degree (2001), Possession with Intent to Deliver Heroin (2008), CCDW (1998), and
CCDW (1999).

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handgun and a men’s jacket containing Defendant’s identification card under the
front passenger seat. When questioned, Defendant stated he had cocaine and
removed a clear sandwich bag containing suspected crack cocaine and $231 in cash.
He told the police that he had just stolen the drugs from an alleyway. It was
determined he was in possession of approximately 6 grams of cocaine, 5.38 grams
found in a clear-knotted plastic sandwich bag on his waistband and .82 grams
contained in seven smaller Ziploc baggies, commonly referred to as “dime bags”
intended for sale.

ot On January 22, 2013, Defendant was indicted on the charges of Drug
Dealing, Possession of a Firearm During the Commission of a Felony (“PFDCF”),
Possession of a Deadly Weapon by a Person Prohibited (“PDWBPP”), Carrying a
Concealed Deadly Weapon (“CCDW”), and Driving without a Valid License.° The
PDWBPP charge was severed from the other charges for trial.°

4, On November 22, 2013, following a three-day Superior Court jury trial,
a jury returned guilty verdicts for Drug Dealing and PFDCF.’ Defendant was
acquitted on the CCDW charge. On January 8, 2014, a separate jury found

Defendant not guilty of the PDWBPP charge.

 

> Indictment, True Bill Filed, D.I. 2.

© Defendant’s Motion for Relief from Prejudicial Joinder, D.I. 16. On November 19, 2013, the
State entered a nolle prosequi for the charge of Driving without a Valid License.

7 Jury Trial Held, D.I. 22.

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5. On May 13, 2014, Defendant filed a Motion for New Trial arguing
violations of Brady and misconduct at the Office of the Chief Medical Examiner
(“OCME”) as it relates to chain of custody.’ Although his motion was denied,’ the
Court ordered the drugs be re-tested. The drugs re-tested positive for cocaine.

6. On November 18, 2016, the State’s moved to declare Defendant a
habitual offender!® and Defendant was sentenced as such. The State had filed a
previous Motion to Declare Defendant a Habitual Offender under § 4214(b),"'
where Defendant faced a mandatory minimum sentence of life imprisonment.
Because of changes in the law eliminating the provisions of § 4214(b), the State
refiled to have Defendant sentenced as a habitual offender requesting habitual
offender status only as to the firearm charge, which subjected Defendant to a
minimum mandatory sentence of twenty-five years.'* The Court followed the
recommendation of this minimum mandatory sentence and imposed a total of thirty-
five years at Level V, suspended after twenty-five years, for transitioning levels of

probation.¥

 

8 Defendant’s Motion for New Trial, D.J. 27. J. Carpenter denied Defendant’s motion, but ordered
for a retesting of the drugs at issue in Defendant’s case, that were returned yielding positive tests.
° Order Denying Defendant’s Motion for New Trial, D.I. 46.

10 State’s Motion to Declare Defendant an Habitual Offender, D.I. 50; Order Granting State’s
Motion to Declare Defendant a Habitual Offender, D.I. 50.

11 See Transcript of Sentencing — November 18, 2016, D.L. 53; see also 11 Del. C. § 4214.

2 See Transcript of Sentencing — November 18, 2016, D.I. 53.

13 Sentence Order, D.I. 51. Defendant received an additional two-year probation sentence for Drug
Dealing.

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7. On December 7, 2016, Defendant filed a notice of appeal. On October
20, 2017, the judgment of the Superior Court was affirmed."

8. On December 8, 2017, Defendant timely filed pro se motions for
Postconviction Relief and for the Appointment of Counsel.!° Defendant’s Motion
for Appointment of Counsel was granted.'® On August 7, 2018, through assistance
of counsel, Defendant filed an Amended Motion for Postconviction Relief.'’ On
November 16, 2018, the State filed its Response.'? On December 21, 2018,
Defendant filed a Reply.”

9. The Court referred Defendant’s Amended Motion for Postconviction
Relief to a Superior Court Commissioner for proposed findings of fact and
conclusions of law under Delaware Superior Court Criminal Rule 62 (a)(5).”? On
May 7, 2019, Commissioner Parker held an evidentiary hearing and heard testimony

from trial and appellate counsel.

 

14 Mandate filed from Supreme Court: Superior Court Judgment Affirmed, D.I. 62.

15 Defendant’s Motion for Postconviction Relief, D.I. 63; Defendant’s Motion for Appointment of
Counsel, D.I. 64.

'6 Letter Granting Defendant’s Motion for Appointment of Counsel, D.I. 67.

17 Amended Motion for Postconviction Relief, D.I. 69 [hereinafter “Def.’s Mot.”].

18 State’s Response to Defendant’s Amended Motion for Postconviction Relief, D.I. 77.

'° Defendant’s Response to the State’s Response, D.I. 78.

20 See 10 Del. C. § 512(b)(1)(b) (2013 & Supp. 2016); DEL. SuPER. CT. CRIM. R. 62(a)(5) (Under
Delaware Superior Court Rule 62(a)(5), the Court may refer to a Superior Court Commissioner
case-dispositive motions, including postconviction relief motions, and the Commissioner must
submit “proposed findings of fact and recommendations for the disposition, by a judge, of any
such matter.”).
10. On October 29, 2019, the Commissioner filed a report recommending
that Defendant’s Amended Motion for Postconviction Relief should be denied
(“Commissioner’s Report”).

11. After the Commissioner issues a report, “any party may serve and file
written objections” to the report within ten days.” On November 12, 2019,
Defendant filed a timely appeal.2? On March 21, 2020, the State filed a response to
Defendant’s appeal.24 On May 18, 2020, Defendant submitted an additional letter
reiterating prior arguments raised in his Rule 61 motion that the Court accepted as a
supplement.”

II. STANDARD OF REVIEW

12. Under Rule 62(a)(5), the Commissioner, to which the Court referred
the motion, is permitted to conduct hearings and “submit to a judge of the Court
proposed findings of fact and recommendations for the disposition, by a judge,” of
any such motion.”© The Court “may accept, reject or modify, in whole or in part, the

9927

findings of fact or recommendations made by the Commissioner. Having

 

21 Commissioner’s Report and Recommendations and Order, D.I. 83 [hereinafter “Comm’r
Report”].

22 De. SUPER. CT. CRIM. R 62(a)(5)(ii).

23 Defendant’s Appeal from Commissioner’s Finding of Fact, D.I. 84 [hereinafter “Def.’s
Appeal”.

24 State’s Response to Defendant’s Appeal, D.I. 88 [hereinafter “State’s Resp.”].

25 Defendant’s Motion for Modification of Sentence, D.I. 89.

26 DEL. SUPER. CT. CRIM. R. 62(a)(5).

27 DEL. SUPER. CT. CRIM. R 62(a)(5)(ii).
received timely objections to the Commissioner’s recommendations, the Court now
makes a de novo review of “those portions of the report” to which an objection is
made.”8
Ii. DISCUSSION

13. Superior Court Criminal Rule 61 is the exclusive remedy for persons
“in custody under a sentence of this court seeking to set aside the judgment of
conviction... .”2? This Court “must first consider the procedural requirements of
Rule 61 before addressing any substantive issues.”*° The procedural “bars” of Rule
61 are: timeliness?! repetitiveness,>? procedural default,’ and former
adjudication.**

14. Defendant’s Rule 61 Motion constitutes a timely first motion for

postconviction relief. Accordingly, his Motion is reviewed on the merits. Defendant

 

28 DEL. SUPER. CT. CRIM. R 62(a)(5)(iv).

29 DEL. SUPER. CT. CRIM. R. 61(a)(1). See, e.g., Warnick v. State, 158 A.3d 884, 2017 WL
1056130, at *1, n.5 (Del. Mar. 30, 2017) (TABLE) (citing Miller v. State, 157 A.3d 190, 2017 WL
747758 (Del. Feb. 24, 2017) (TABLE)) (denying Rule 35(a) motion attacking sufficiency of
evidence in indictment to which defendant pleaded guilty; defendant’s “challenge [of] his
indictment is outside the scope of Rule 35(a)” and was limited to Rule 61).

30 Bradley v. State, 135 A.3d 748, 756-57 (Del. 2016) (citing Younger v. State, 580 A.2d 552, 554
(Del. 1990)). See DEL. SUPER. CT. CRIM. R. 61(4) (setting forth Rule 61’s procedural bars).

31 DEL. SUPER. CT. CRIM. R. 61(i)(1). See, e.g., Evick v. State, 158 A.3d 878, 2017 WL 1020456,
at *1 (Del. Mar. 15, 2017) (TABLE) (affirming denial of Rule 61 motion as untimely when filed
more than two years after conviction became final).

32 DEL. SUPER. CT. CRIM. R. 61(i)(2). See, e.g., Walker v. State, 154 A.3d 1167, 2017 WL 443724,
at *1-2 (Del. Jan. 17, 2017) (TABLE) (denying defendant’s third postconviction relief motion as
repetitive; “Rule 61 provides a limited window for judicial review, especially upon a repetitive
motion.”).

33 DEL. SUPER. CT. CRIM. R. 61(i)(3).

34 DEL. SUPER. CT. CRIM. R. 61(i)(4).
raises three ineffective assistance of counsel claims alleging that: (1) trial counsel
should have challenged the sufficiency of the evidence presented at trial by seeking
a motion for judgment of acquittal; (2) trial counsel should have investigated and
presented statements made in Defendant’s TASC Report, and (3) appellate counsel
should have moved for insufficiency of the evidence to sustain the conviction.

15. Tosucceed on his ineffective assistance of counsel claims as they relate
to trial counsel, Defendant must demonstrate: (1) “that trial counsel’s performance
was objectively unreasonable and that the defendant was prejudiced as a result[;]”*
and (2) that if counsel was deficient, that there was a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.”°® Mere allegations of ineffectiveness are not enough.*’ Defendant must
make and substantiate concrete allegations that overcome the strong presumption
that counsel’s conduct fell within a wide range of professional assistance.** There

is a strong presumption that a defense counsel’s conduct constituted sound trial

strategy.*?

 

35 Sykes v. State, 147 A.3d 201, 211 (Del. 2015) (citing Strickland v. Washington, 466 U.S. 668,
694 (1984)).

36 Strickland v. Washington, 466 U.S. 668, 694 (1984).

37 Younger v. State, 580 A.2d 552, 556 (Del. 1990).

38 See Salih v. State, 2008 WL 4762323, at *1 (Del. 2008); see also Albury v. State, 551 A.2d 53,
59 (Del. 1988).

39 Strickland, 466 U.S. at 694.
16. As to appellate counsel, Defendant must demonstrate “that his counsel
was objectively unreasonable in failing to find arguable issues on appeal — that is,
that counsel unreasonably failed to discover nonfrivilous issues and to file a merits
brief raising them.”4? In challenging the competency of appellate counsel,
Defendant must make a “showing that a particular nonfrivilous issue was clearly
stronger than issues that counsel did present[.]*!

17. Additionally, Defendant must also establish that that any allegedly
deficient performances of counsel resulted in prejudice.** As to both trial and
appellate counsel, Defendant fails to make such showing.

A. Insufficiency of the Evidence

18. Defendant contends that had trial counsel moved for judgment of
acquittal on the basis of insufficiency of the evidence as to the element of possession,
such challenge would have been successful. He reiterates his argument that the
presence of the firearm in the vehicle at the time of arrest was circumstantial

evidence and the mere proximity to the contraband in the vehicle was not enough to

prove possession.” This Court disagrees.

 

40 Neal v. State, 80 A.3d 935, 946 (Del. 2013) (quoting Smith v. Robbins, 528 U.S. 259, 285
(2000)).

"| Id, at 946.

42 Td. (quoting Smith v. Robbins, 528 U.S. 259, 285 (2000); see generally Strickland, 466 U.S. 668
(1984).

43 Def.’s Appeal J 15 (quoting United States v. Grubbs, 506 F.3d 4343, 439 (6th Cir. 2007)
(quoting United States v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007))) (He argues that that
“[p]resence alone near a gun . . . does not ‘show the requisite knowledge, power or intention to

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19. As noted in the Commissioner’s Report, the extensive record supports
that a reasonable trier of fact could find Defendant guilty of possession.** Even
considering Defendant’s arguments on appeal, while it is true that some courts have
ruled that proximity to firearm alone is insufficient proof to establish possession,”
the facts here are distinguished from Defendant’s cited cases.*°

20. Defendant was the sole occupant and operator of a rental vehicle where
contraband was found on his person and a firearm under the passenger seat with a
men’s jacket and Defendant’s identification. The Delaware Supreme Court has held
that it is appropriate to presume the custodian of an automobile “to have dominion
and control of contraband found in the automobile; and that if... such dominion
and control may be found to be a conscious dominion and control, the evidence is

sufficient to warrant the conclusion of ‘possession’ as to the custodian.”*”

 

“4 Comm’r Report at 9.

‘5 See United States v. Jenkins, 90 F.3d 814 (3d Cir. 1996) (reversing defendant’s conviction where
defendant was at an acquaintance’s house where drugs were found, holding a reasonable jury may
not infer possession beyond a reasonable doubt from defendant’s physical distance from the drugs
alone.); see also Holden v. State, 305 A.2d 320 (Del. 1973) (overturning defendant’s convictions
because defendants were only passengers in the vehicle where contraband was found.); see also
Crawley v. State, 235 A.2d 282 (Del. 1967) (finding that evidence of mere proximity was not
enough because defendant was the passenger in a vehicle allegedly containing stolen goods.).

“© Notably, Defendant’s reliance on United States v. Grubbs is misplaced, distinguishable, and
does not favor Defendant, where the Sixth Circuit Court of Appeals acknowledges that “if a
defendant is found with a firearm under the seat of the car he is driving, and he is the lone passenger
of the car,” less evidence may be required “to infer that he knowingly has the power and intention
to exercise dominion and control over the discovered firearm.” United States v. Grubbs, 506 F.3d
439-40, (6th Cir. 2007).

‘7 Holden, 305 A.2d at 320; see generally Jenkins, 90 F.3d 814; see generally Crawley, 235 A.2d
282.

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21. As to the claim that counsel should have moved for judgment of
acquittal on Drug Dealing, Defendant reasserts that that State’s drug expert,
Detective Janvier, was unconvincing and that “it is clear that no rational trier of fact
could find [Defendant] guilty beyond reasonable doubt of Drug Dealing.” This
Court echoes the sentiments expressed in the Commissioner’s Report as to the
logical inferences that could have been drawn by the jury given the record before
it.”

22. For this reason, trial counsel was not objectively unreasonable when he
chose not to file a motion for judgment of acquittal, where there was legally
sufficient evidence to justify a conviction.°’ Similarly, appellate counsel was not
objectively unreasonable for failing to challenge the sufficiency of the evidence on
the facts of this case. In accord with the Commissioner’s Report neither motions for
judgment of acquittal nor appellate motion for insufficiency of evidence would have

been successful.

 

8 Def.’s Appeal J 24.

49 Comm’r Report at 10. See Evidentiary Hearing Transcript at 31:8-16-32:-2 (Counsel for the
State argued that “it would be reasonable for a finder of fact to find that the defendant was aware
of the firearm, that the defendant was a drug dealer who possessed cocaine with the intent to deliver
it, and that the defendant possessed that firearm which was in arm’s reach at the time he also
possessed the drugs during the traffic stop . . . .”) [hereinafter “Evidentiary Tr.”].

°0 Evidentiary Hearing Tr. at 6:23-7:1-8 (Defendant’s trial counsel stated, “I elicited information
that this was for personal use. I did not feel the Court was going to say that there was no kind of
issue for the fact finder. And I did not think — the State’s expert witness had testified, in my
professional opinion, that this was drug dealing. I did not feel that the motion for judgment of
acquittal was going to be successful.”).

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B. TASC Report

23. Defendant’s final argument is that trial counsel’s failure to admit
evidence of a TASC Report warrants postconviction relief. He argues the report
would have demonstrated Defendant possessed the drugs for personal use versus an
intent to distribute. He concedes that the statements contained in the TASC Report
are hearsay, yet claims they fall under two hearsay exceptions: D.R.E. 803(6) and
807.

24. Defendant argues that the TASC report is a business record under
D.R.E. 803(6).°! He presents no case law to support his argument. Regardless, the
report is inadmissible hearsay because it contained Defendant’s self-serving
inadmissible statement.” Defendant elicited the statements made after his arrest.
His self-serving hearsay statement would not independently qualify as an exception.

25. The admissibility ruling is the same under D.R.E. 807.*° For a hearsay
statement to be held as admissible under this exception, “there [must be] a guaranty

of trustworthiness associated with the proffered hearsay statement... .”°* The self-

 

>! See D.R.E. 803(6).

2 Demby v. State, 695 A.2d 1152, 1162 (Del. 1997) (“If double hearsay is being offered into
evidence, each aspect must qualify independently as an exception to the hearsay rule[.]”); see also
Evidentiary Tr. at 8:9-13,16-21 (Trial counsel stated “I think the TASC Report itself is not
admissible. It’s hearsay. And I would not be able to . . . get it into evidence. I think I would need
a witness to do that.” Even as to using the TASC Officer as a witness, he stated “I think that her
testimony is also hearsay... .”).

°3 See D.R.E. 807.

*4 Stigliano v. Anchor Packing Co., 2006 WL 3026168, at *1 (Del. Super. Ct. Oct. 18, 2006) (citing
Odaho v. Wright, 110 S.Ct. 3139, 3147 (1990)); see Purnell v. State, 979 A.2d 1102, 1107 (Del.

12
serving statement does not satisfy the guarantee of trustworthiness requirement,”>

and does not qualify as an exception under D.R.E. 807.

26. The TASC Report would not have been admissible under either
exception. Therefore, the failure of counsel to attempt to offer any statements
contained within cannot form the basis of a viable ineffective assistance of counsel
claim.

27. For the foregoing reasons, the Court finds that Defendant fails to meet
his burden to demonstrate objective unreasonableness and prejudice as required
under Strickland and Neal, as to both trial and appellate counsel performances.

28. The Court accepts, in whole, the Commissioner’s Report and
Recommendation.** Defendant received effective assistance of counsel at both the

trial and appellate stages of his case.

 

2009).

55 State’s Resp. § 13 (citing Cabrera v. State, 840 A.2d 1256, 1268 (Del. 2004)) (It is a “[a] self-
serving statement given by a defendant who is electing not to testify, with a clear motivation to
lie,” therefore it “lacks sufficient ‘guaranty of trustworthiness’ and does not satisfy the necessarily
narrow construction of the residual exception.”).

56 See DEL. SUPER. CT. CRIM. R. 62(a)(5)(iv) (“A judge may accept, reject, or modify, in whole or
in part, the findings of fact or recommendations made by the Commissioner.”).

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29. After careful consideration and de novo review, the Court ADOPTS
the Commissioner’s Report and Recommendation for the reasons stated above.

Defendant’s Appeal from the Commissioner’s Finding of Fact and

 

Recommendations is DENIED.

IT IS SO ORDERED. Jo iia —

 

  
   

fo Vivian L. sii

Judge,
/

   

oc: Prothonotary

cc: Defendant
Christopher S. Koyste, Esquire
Department of Justice
Investigative Services Office

/

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