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