Opinion
ID No. 9608002165
Decided: September 30, 1999.
ORDER
Upon consideration of defendant's Motion for Postconviction Relief, the record in the case, and counsel's affidavits, the following findings are made:
1. On December 17, 1996, the jury found the defendant-petitioner, Edward McNair, guilty of Trafficking in Cocaine, Possession with Intent to Deliver Cocaine, Maintaining a Vehicle, and Conspiracy in the Second Degree. The defendant's conviction was appealed, and the Delaware Supreme Court affirmed the decision on November 25, 1997.
2. The evidence presented by the State at trial established that on August 2, 1996, the Wilmington Police Department began conducting a surveillance in the area of Interstate 495 based upon information provided by a past reliable confidential informant regarding the defendant's activity. Specifically, they were advised that the defendant would be in a 1988 Lincoln Town Car bearing Delaware registration number 342148 and would be in possession of narcotics. At approximately 9 p.m. on that date, the police observed Mr. MeNair's car traveling at a high rate of speed exiting the interstate onto Governor Printz Boulevard. The vehicle was subsequently stopped, and Mr. McNair was identified as a passenger, and Elvira Spencer was the operator of the motor vehicle. Ms. Spencer was subsequently searched, and narcotics were found on her person. As a result of discovering these drugs, both Ms. Spencer and Mr. McNair were arrested, and the vehicle was taken to the police station where an inventory search was subsequently conducted. As a result of the search, the police also discovered another bag containing controlled substances in the back seat.
3. Ms. Spencer testified at the defendant's trial that she and Mr. McNair had driven to New York on the day of the arrest to purchase narcotics. According to Ms. Spencer, they had made this type of trip about twice a week, taking turns driving the vehicle. She testified that upon arriving in New York they would separate, each would buy drugs and then they would eventually meet at a restaurant location. At the restaurant, the drugs would be given to her to conceal on her person for the trip back to Delaware. She testified she was generally paid several hundred dollars for making the trip and concealing the drugs. Mr. McNair also testified stating that he and Ms. Spencer had gone to New York on the day of the arrest to shop for clothing. He indicated that they had separated for approximately half an hour during which time he purchased some videotapes and Ms. Spencer allegedly bought a dress. He indicated that he was unaware that Ms. Spencer was carrying drugs at the time of the arrest.
4. Prior to the trial, counsel for the petitioner filed a motion to suppress the drugs which were seized as a result of the vehicle stop. The motion was heard before Judge Goldstein on November 8, 1996, and the motion was denied.
5. Counsel for the petitioner also filed a motion in limine prior to the trial requesting that the Court exclude testimony of the out-of-court statement of a confidential informant which formed the basis of the stop of the defendant's vehicle. The Court denied the motion on the grounds that it was not hearsay because the statements were not offered for the truth of the matter asserted, but instead were offered to explain why police were present and conducting surveillance, which resulted in the defendant's vehicle being stopped.
6. On January 12, 1999, the petitioner filed a Motion for Postconviction Relief under Rule 61 of the Superior Court Criminal Rules. The Court requested the trial and appellate counsel who represented Mr. McNair to file affidavits in response to the assertions of ineffectiveness pursuant to Rule 61(g)(2). The affidavits were filed on May 11 and June 18, 1999, and the petitioner filed a "reply" on May 18, 1999.
7. The petitioner's motion raises three alleged claims which he asserts justify his relief:
(a) ineffective assistance of counsel by trial counsel,
(b) ineffective assistance of counsel by his attorney on appeal, and
(c) a Fourth Amendment violation regarding the search and seizure of the vehicle.
8. The Court first finds that the Fourth Amendment claim is procedurally barred under Rule 61(I)(4) as the matter has been fully and adequately litigated by the parties prior to trial and decided by Judge Goldstein. The petition does not assert any new or additional facts that were not presented during the suppression hearing, and the Court finds that reconsideration of this Court's prior decision is not warranted in the interest of justice.
9. Next, the alleged ineffectiveness of his counsel on appeal is the attorney's failure to assert on direct appeal the ineffectiveness of his trial counsel. Since it is well established that such claims may not be raised on appeal, the appeal counsel's actions were appropriate and professionally reasonable. Thus, the Court finds that this claim is also without merit.
10. The final assertion set forth in the petition relates to the ineffectiveness of his trial counsel. To prevail on this claim of ineffective assistance, Mr. McNair must meet the two prong test of Strickland v. Washington, which requires that a defendant show 1) 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, the result of the trial would have been his acquittal. In addition, Delaware courts have consistently held that in setting forth a claim of ineffective assistance of counsel, the defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. When examining the representation of counsel pursuant to the first prong of the Strickland test, there is a strong presumption that counsel's conduct was professionally reasonable.
466 U.S. 668 (1984).
Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985); Strickland, 466 U.S. at 688, 694; Accord Larson v. State, Del. Supr., No. 200, 1994, Hartnett, J. (June 23, 1995), Order at 3-4; Blanchfield v. State, Del. Supr., No. 97, 1994, Veasey, C.J. (October 18, 1994) (ORDER); Skinner v. State, Del. Supr., 607 A.2d 1170, 1172 (1992); Albury v. State, Del. Supr., 551 A.2d 53, 58 (1988).
Younger v. State, Del. Supr., 580 A.2d 552, 556 (1990); Skinner v. State, Del. Supr., No. 318, 1993, Holland, J. (March 31, 1994) (ORDER).
Albury v. State, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689); see also Larson v. State, supra at 4; Flamer v. State, Del. Supr., 585 A.2d 736. 753 (1990).
11. In general terms, the petitioner asserts that his trial counsel failed to adequately investigate or test the bases of the police stop of the motor vehicle and the legality of the subsequent search. This simply is not true. Upon reviewing the discovery material provided regarding the defendant's arrest, his counsel filed an appropriate motion to suppress the drugs seized based upon the unlawful stop of the motor vehicle. A suppression hearing was held, and the officers testified that they had received information from a past reliable confidential informant that the defendant would be traveling on Interstate 495 in a Lincoln Town Car with Delaware registration 342148 and in the vehicle would be narcotics. Based upon this information, surveillance of the Interstate 495 area was established and consistent with the information provided by the confidential informant, the defendant's vehicle was observed exiting onto Governor Printz Boulevard from the interstate at an extremely high rate of speed. The officers pursued the vehicle reaching speeds in excess of 80 miles per hour before the vehicle was stopped. Such erratic driving clearly provided justification for the police to stop the vehicle. The subsequent search of the driver, Ms. Spencer, in which the petitioner has no standing to object, resulted in the discovery of drugs and the arrest of her and the defendant. An inventory search of the vehicle was subsequently conducted and additional drugs were located in a bag in the back seat of the vehicle. At trial, Ms. Spencer implicated the defendant in the illegal drug activity.
In spite of these damaging facts which clearly justify stopping the vehicle, the defendant asserts that the stop was pretextal and his counsel failed to adequately pursue this area. Other than the defendant's paranoia, there is no evidence to support this assertion. The Court's review of the file, the trial transcript and counsels' affidavits reflect a reasoned and appropriate probing by petitioner's counsel into the justification of the stop which clearly meets any objective standard of reasonableness regarding the conduct of counsel. In addition, the evidence was overwhelming and there is no reasonable probability that the trial result would have differed even if the defendant's counsel had erred as he alleges. The defendant may not be happy with the result or content with the state of the search and seizure law in Delaware, but the Court can find no justification to support the defendant's petition and thus it too is summarily dismissed.
12. For the reasons set forth above, the defendant's motion under Rule 61 is hereby DISMISSED.
IT IS SO ORDERED this 30th day of September, 1999. _______________________________ Judge William C. Carpenter, Jr.