Opinion
No. 346, 1998.
January 28, 1999.
Court Below: Superior Court of the State of Delaware in and for Sussex County in Cr. A. Nos. S97-02-0389R1, 0390R1 and Def. ID No. 9702005527.
AFFIRMED.
Unpublished Opinion is below.
ERNEST LOFLAND, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 346, 1998. In the Supreme Court of the State of Delaware. Submitted: December 10, 1998. Decided: January 28, 1999.
Court Below: Superior Court of the State of Delaware in and for Sussex County in Cr. A. Nos. S97-02-0389R1, 0390R1 and Def. ID No. 9702005527.
Before WALSH, HOLLAND and HARTNETT, Justices.
ORDER
This 28th day of January 1999, it appears to the Court that:
(1) The appellant, Ernest Lofland ("Lofland"), appeals from the Superior Court's denial of Lofland's motion for postconviction relief under Superior Court Criminal Rule 61. The State has moved, under Supreme Court Rule 25(a), to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Lofland's opening brief that the appeal is without merit.
(2) Lofland was charged with four counts of delivery of cocaine. Following a two-day jury trial in the Superior Court, Lofland was convicted of two counts of delivery of cocaine and acquitted of two counts. Lofland was sentenced to twenty years in prison, suspended after ten years, for decreasing levels of supervision. On direct appeal, Lofland's conviction was affirmed by this Court pursuant to Supreme Court Rule 26(c). Lofland v. State, Del. Supr., No. 362, 1997, Holland, J., 1998 WL 171106 (Mar. 25, 1998) (ORDER).
(3) Following the decision of this Court on direct appeal, Lofland filed a pro se motion for postconviction relief alleging ineffective assistance of counsel. After directing Lofland's defense counsel to respond to the allegations, the Superior Court denied Lofland's motion. This appeal followed.
(4) At trial, Delaware State Police Detective Daniel Sponaugle ("Sponaugle") testified that between May 1996 and February 1997, he was involved in an undercover operation investigating drug-related activity in an area known informally as "Thompsonville." Thompsonville is located on County Road 326 about two miles north of Millsboro in Sussex County. Sponaugle testified that on October 30, 1996, while working undercover in Thompsonville, he bought crack cocaine from Lofland. Sponaugle testified that on December 3, 1996, he bought cocaine two more times from Lofland. Delaware Police Officer Andrew Goode ("Goode") testified that he was working undercover in Thompsonville on November 20, 1996, and purchased crack cocaine from Lofland on that date. At trial, both Sponaugle and Goode identified Lofland as the person from whom they purchased cocaine. They also testified that Lofland was wearing a distinctive metal "handcuff" belt during each of the drug transactions.
(5) Lofland's defense at trial was one of "mistaken identification." His attorney argued that it was not Lofland who sold drugs to Sponaugle and Goode. In support of his defense, Lofland produced Robert Meredith ("Meredith"), Lofland's employer, who testified that Lofland was working at Meredith's farm in Federalsburg, Maryland, on October 30 and November 20, 1996, two of the dates Lofland was alleged to have been in Thompsonville selling drugs to Sponaugle and Goode.
(6) In his opening brief on appeal, as in his postconviction motion, Lofland contends that his defense counsel failed to compel the disclosure of three "cooperating individuals" who had provided information to Sponaugle. Lofland also contends that his defense counsel: (i) failed to visit the crime scene; (ii) failed to object to testimony that the crime scene was located in a "high crime" area; and (iii) "made certain extremely unusual strategy decisions in his management of the case, mainly [concerning] the [metal "handcuff"] belt."
(7) To prevail on a claim of ineffective assistance of counsel, Lofland must show that his counsel's representation fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, there is a reasonable possibility that the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Review of counsel's representation is subject to a strong presumption that the representation was professionally reasonable. Id. at 689. Lofland therefore must substantiate his concrete allegations of actual prejudice or else risk summary dismissal. Younger v. State, Del. Supr., 580 A.2d 552, 556 (1990).
(8) Lofland's first claim is that his counsel should have attempted to compel the disclosure of three "cooperating individuals" who had assisted Sponaugle in learning about the residents and visitors in Thompsonville. According to Lofland, had his defense counsel compelled the disclosure of the "cooperating individuals," Lofland "could have shown [that] these individuals were involved in the selling of drugs, or working as informants for the Delaware State Police."
(9) The Superior Court found no merit to Lofland's claim that his attorney was ineffective for failing to learn the identity of the three "cooperating individuals." We agree. The "cooperating individuals" in this case were not parties to the illegal transactions, and thus Lofland was not entitled to disclosure. See D.R.E. 509 (codifying State's privilege of nondisclosure of identity of confidential informant); see also State v. Flowers, Del. Super., 316 A.2d 564 (1973) (recognizing State's privilege of nondisclosure). Furthermore, Lofland offers no credible evidence suggesting that the individuals' testimony would have changed the outcome of the trial in Lofland's favor. Strickland v. Washington, 466 U.S. at 694. In short, it does not appear that Lofland's defense counsel had any reason to attempt to compel disclosure of the three "cooperating individuals." Therefore, counsel was not ineffective for failing to learn the identity of the individuals.
(10) Lofland's second claim is that his defense counsel was ineffective for failing to object to testimony by Sponaugle and Goode that Thompsonville was a "high crime area." The Superior Court ruled that, in view of Lofland's defense of "mistaken identification," Lofland was not prejudiced by the testimony suggesting that drug-related activity took place in Thompsonville. We agree. Lofland has failed to make any concrete allegations of actual prejudice resulting from the officers' testimony about Thompsonville. Younger v. State, 580 A.2d at 556. Moreover, Lofland has not established that the testimony was improper. Thus, it cannot be said that defense counsel's representation of Lofland fell below an objective standard of reasonableness when counsel did not object to the testimony.
(11) Lofland's third claim is that his counsel was ineffective for failing to visit the crime scene. Lofland does not allege any relevant information that defense counsel would have obtained had he visited the crime scene. The Superior Court ruled that, in view of Lofland's chosen defense of "mistaken identification," Lofland "has not shown how he was in any way prejudiced by his allegation that defense counsel did not visit the crime scene." We agree. Defense counsel was not ineffective for failing to visit the crime scene.
(12) Lofland's fourth claim criticizes, in general terms, his defense counsel's "strategy" as to the metal "handcuff" belt evidence that linked Lofland to the alleged drug transactions. In response to the potentially damaging belt evidence introduced by the State, Lofland's defense counsel produced a men's clothing retailer who testified that she had, during the past year or two, sold at least 12 identical metal "handcuff" belts at her Sussex County flea market shop. This testimony was intended to support the defense's theory of "mistaken identification" and cast doubt on the State's suggestion that the "handcuff" belt worn by the drug seller was uniquely Lofland's. Lofland has not shown how defense counsel's strategy concerning the "handcuff" belt was unreasonable, nor has he suggested how defense counsel could have more effectively challenged the belt evidence. Lofland's claim that his counsel was ineffective, is without merit.
(13) It is manifest on the face of Lofland's opening brief that the appeal is without merit. The issues are clearly controlled by settled Delaware law. To the extent the issues on appeal implicate the exercise of judicial discretion, there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is
AFFIRMED.
BY THE COURT:
/s/ Randy J. Holland, Justice