Opinion
ID No. 0001016446
Submitted: November 26, 2002
Decided: December 11, 2002
IK00-01-0776-R1, IK00-01-0778-R1, IK00-01-0780-R1, IK00-01-0782-R1, IK00-01-0783-R1, IK00-01-0784-R1, IK00-01-0785-R1
ORDER
On this 11th day of December, 2002, upon consideration of the defendant's Motion for Postconviction Relief, the Commissioner's Report and Recommendation, and the record in this case, it appears that:
(1) The defendant, Reginald McRae ("McRae"), was found guilty by a jury on July 20, 2000, of one count of Trafficking in Cocaine, 16 Del. C. § 4753A; one count of Possession of a Narcotic Schedule II Controlled Substance, 16 Del. C. § 4753, as a lesser included offense of Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance; one count of Possession of Drug Paraphernalia, 16 Del. C. § 4771; one count of Maintaining a Vehicle for Keeping Controlled Substances, 16 Del. C. § 4755; one count of Driving a Vehicle Under the Influence of Alcohol and/or Drugs, 21 Del. C. § 4177(a); one count of Reckless Driving, 21 Del. C. § 4175(a); one count of Fail to Stop on Command, 21 Del. C. § 4103(b); and one count of Driving While Suspended, 21 Del. C. § 2756(a). Following the trial, the State moved to declare McRae an Habitual Offender pursuant to 11 Del. C. § 4214(b). The Court granted the motion and on September 19, 2000 the Court sentenced McRae to life in prison on the trafficking conviction pursuant to 11 Del. C. § 4214(b). McRae also received sentences of one year in prison on each of the possession convictions, one year in prison on the conviction for maintaining a vehicle and thirty days in prison on the conviction for driving while suspended.
(2) A timely notice of appeal was filed with the Delaware Supreme Court. McRae's counsel filed a brief and a motion to withdraw pursuant to Supreme Court Rule 26(c). In the motion to withdraw, appellate counsel represented that she conducted a conscientious review of the record and concluded that no meritorious issues existed. By letter, counsel informed McRae of the provisions of Rule 26(c) and attached a copy of the motion to withdraw and accompanying brief. McRae was informed of his right to supplement his attorney's presentation. McRae responded with a brief that raised seven issues.
The Supreme Court granted the State's motion to affirm as to all McRae's claims with the single exception of McRae's double jeopardy claim. The Court found, and the State agreed, that McRae should not have been sentenced for both trafficking in cocaine and possession of cocaine. The possession charge was remanded to the Superior Court for issuance of a revised sentence order. On November 9, 2001 the Superior Court issued a revised sentence order dismissing the charge of possession of cocaine in accordance with the Supreme Court mandate. All remaining aspects of McRae's original sentence remained in effect. Next McRae filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61. In his motion, McRae alleges four grounds for relief, all premised on claims of ineffective assistance of counsel.
(3) The Court referred this motion to Superior Court Commissioner Andrea Maybee Freud pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62 for proposed findings of facts and conclusions of law. The Commissioner has filed a Report and Recommendation concluding that the motion for postconviction relief should be dismissed as procedurally barred by Rule 61(i)(3) for failure to prove cause and prejudice and Rule 61(i)(4) as previously adjudicated.
(4) No objections to the Report have been filed.
NOW THEREFORE, after careful and de novo review of the record in this action, and for the reasons stated in the Commissioner's Report and Recommendation dated November 8, 2002,
IT IS ORDERED that:
(A) The well-reasoned Commissioner's Report and Recommendation, as amended on December 10, 2002, is adopted by the Court;
(B) The defendant's Motion for Postconviction Relief is DISMISSED.
TX
APPENDIX
Dennis Kelleher, Esq., Deputy Attorney General, Dover, Delaware, for the State of Delaware.Reginald McRae, pro se.
COMMISSIONER'S REPORT AND RECOMMENDATIONS
Upon Defendant's Motion For Postconviction Relief
Pursuant to Superior Court Criminal Rule 61 FREUD, Commissioner November 8, 2002
On July 20, 2000 the Defendant, Reginald McRae ("McRae") was found guilty by a jury of one count of Trafficking in Cocaine, 16 Del. C. § 4753A; one count of Possession of Cocaine, 16 Del. C. § 4753, as a lesser included offense of Possession with the Intent to Deliver; one count of Possession of Drug Paraphernalia, 16 Del. C. § 4771; and one count of Maintaining a Vehicle for Keeping Controlled Substances, 16 Del. C. § 4755; one count of Driving Under the Influence of Alcohol State v. McRae ID No. 0001016446 November 8, 2002 and Drugs, 21 Del. C. § 4177(a); one count of Reckless Driving, 21 Del. C. § 4175(a); one count of Failure to Stop on Command, 21 Del. C. § 4103(b); and one count of Driving While Suspended, 21 Del. C. § 2756(a). Following the trial, the State moved to declare McRae an Habitual Offender pursuant to 11 Del. C. § 4214(b). The Court granted the motion and on September 19, 2000 the Court sentenced McRae to life in prison on the trafficking charge pursuant to 11 Del. C. § 4214(b). McRae received a sentence of one year in prison on the possession and maintaining a vehicle charges.
A timely notice of appeal was filed. McRae's counsel filed a brief and motion to withdraw pursuant to Supreme Court Rule 26(c). In the motion to withdraw, appellate counsel represented that she conducted a conscientious review of the record and concluded that no meritorious issues existed. By letter, counsel informed McRae of the provisions of Rule 26(c) and attached a copy of the motion to withdraw and accompanying brief. McRae was informed of his right to supplement his attorney's presentation. McRae responded with a brief that raised seven issues. McRae claimed that:
a) his convictions for Trafficking in Cocaine and Possession of Cocaine subjected him to double jeopardy;
b) the cocaine introduced as evidence at trial should have been suppressed because there was a gap in the chain of custody;
While McRae's claim is worded differently, we have re-cast the claim so that we may resolve the double jeopardy issue, which is laudably conceded by the State.
c) he should not have been declared an habitual offender because the State failed to disclose his prior criminal record and he was not given an opportunity to admit or deny his previous convictions at a hearing;
d) the judge failed to personally interrogate the jurors during voir dire;
e) the testimony of a forensic specialist from the Medical Examiner's Office should have been excluded because the State failed to notify the defense of his proposed testimony.
f) there was insufficient evidence to sustain his convictions because there was no evidence that he had been cited for the traffic violations, there were no intoxilyzer or blood test results, and the testimony of the police officers was inconsistent; and
g) his counsel provided ineffective assistance.
McRae v. State, Del.Supr., No. 505, 2000, Berger, J. (October 1, 2001) (ORDER) at 3-4.
The Supreme Court granted the State's motion to affirm as to all McRae's claims with the single exception of McRae's double jeopardy claim. The Court found, and the State agreed, that McRae should not have been sentenced for both trafficking in cocaine and possession of cocaine. The possession charge was remanded to the Superior Court for issuance of a revised sentence. On November 9, 2001 the Superior Court issued a revised sentence dismissing the charge of possession of cocaine in accordance with the Supreme Court order. All remaining aspects of McRae's original sentence remained in effect. Next McRae filed the pending motion for postconviction relief in which he raises four issues including ineffective assistance of counsel.
I. FACTS
The following is a summary of the facts as noted by the Supreme Court in its opinion:
At trial, Corporal Colby A. Cox of the Delaware State Police testified that early in the morning of January 24, 2000, he stopped a car that did not appear to have a license plate on Route 13 southbound in Kent County, Delaware. At the time, he was a member of the Governor's Task Force, which was charged with enforcing the drug laws in certain areas of Kent County known for high levels of drug activity, and was working as part of a team with Corporal Matthew Rigby and Corporal Walter Gygrynuk, also of the Delaware State Police. At about 2:30 a.m., after verifying that the car was properly licensed and giving the driver permission to continue on his way, Corporal Cox got back into his police car, which was parked in the shoulder, looked in his rear view mirror and noticed a second car behind him in the right hand lane of Route 13. The car was moving at a high rate of speed and almost collided with him as it passed; it then continued down Route 13 and veered into the left lane. After radioing Corporal Rigby, who was in the area, for back-up, Corporal Cox followed the car down Route 13. He noted that it was veering from side to side. Although there was snow in the area, there was little on the roadway and conditions were not slippery. As the car slowed down abruptly, it turned right onto Plymouth Road without using the right turn lane and without using a turn signal. Once on Plymouth Road, the car accelerated. Corporal Cox used his air horn a few times and turned on his flashers and siren. By now, Corporal Rigby was behind him. Corporal Cox was able to identify the car as a 1989 maroon Oldsmobile Cutlass with a Delaware license.
As the Cutlass made a left turn from Plymouth Road into the Felton Mobile Home Park, Corporal Cox followed with his siren still on.
The Cutlass then turned right onto a private drive. As it made an abrupt stop in front of one of the mobile homes, Corporal Cox noticed that there were three people inside. The male driver, later identified as McRae, exited the car and began to flee on foot.
Corporal Cox called out and identified himself as a state police officer, but McRae continued to run, eventually reaching Old New Road. By now, Corporal Rigby was also in pursuit. When he was about ten feet away from McRae, Corporal Cox, who was carrying a flashlight, noticed McRae moving his left hand towards his pocket and throwing two plastic bags onto the ground. Corporal Cox shined his flashlight on the objects, yelled to Corporal Rigby that some objects had been tossed aside and continued in pursuit. He and Corporal Rigby caught up with McRae and handcuffed him. Corporal Gygrynuk, who had just driven onto the scene, stayed with McRae while Corporal Cox and Corporal Rigby went back to examine the discarded objects. They found two plastic bags containing a rocklike white substance. Corporal Cox testified that it took 20-25 seconds to locate the bags.
Corporal Gygrynuk testified that, while Corporal Cox and Corporal Rigby were investigating the discarded objects, McRae was sprawled out on the ground with his hands handcuffed behind him. McRae smelled of alcohol, his speech was slurred and he had difficulty walking. Corporal Gygrynuk further testified that it was difficult for him to fingerprint McRae once they arrived at Troop 3 because he kept falling and passing out. Corporal Gygrynuk stated that he did not find any drug-related paraphernalia on McRae's person when he searched him at the police station.
Corporal Cox testified that he took custody of the plastic bags at the scene and transported them to Troop 3. When he arrived at Troop 3, he saw McRae on a bench sleeping. McRae had a strong odor of alcohol about him, was slurring his speech, and was swaying back and forth on the bench. He unsuccessfully attempted to blow into the intoxilyzer machine several times, then lay down on the bench and fell asleep. Corporal Cox testified that he gave the plastic bags to Corporal Rigby at Troop 3, who filled out an evidence envelope. Once the substance in the bags was weighed and field tested, Corporal Cox placed the bags into the evidence envelope, sealed the envelope and took it to the temporary evidence locker. He stated that there was no money or drug paraphernalia found in the Cutlass. Corporal Cox stated that the suspected crack cocaine in the plastic bags weighed 11.21 grams and that, in his experience, the weight and the packaging of the suspected crack cocaine was consistent with drugs intended for distribution, rather than for personal use.
II. MCRAE'S CONTENTIONS
In his motion for postconviction relief, McRae asserts the following four grounds for relief:
Ground one: Ineffective Assistance of Counsel. Counsel failed to attack the validity of the erroneous indictment whereby the indictment violated the Double Jeopardy clause of the State and Federal Constitution.
Ground two: Ineffective Assistance of Counsel. Counsel failed to object to the unconstitutionally ambiguous statute in Title 16 Del. C. § 4753(a)(2), "Trafficking in Cocaine" according to the circumstances of this present case.
Ground three: Ineffective Assistance of Counsel. Counsel was ineffective for failure to uphold the State to the burden of proving "actual or constructive possession", the burden needed to convict the defendant of "Trafficking in Cocaine."
Ground four: Ineffective Assistance of Counsel. Counsel was ineffective for failure to investigate defense witnesses in violation of the Defendant's 6th and 14th Constitutional amendments according to the U.S. and Delaware Constitutions.
III. PROCEDURAL CONSIDERATIONS
Under Delaware Law the Court must first determine whether McRae has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of the postconviction relief claims. Under Rule 61, postconviction claims for relief must be brought within three years of the conviction becoming final. McRae's motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to the motion. As this is McRae's initial motion for postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any claim not previously asserted in a postconviction motion, does not apply either.
Bailey v. State, Del. Supr., 588 A.2d 1121 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552 (1990) (citing Harris v. Reed, 489 U.S. 255 (1989)). See Dawson v. State, Del. Supr ., 673 A.2d 1186, 1190 (1996).
Super.Ct.Crim.R. 61(i)(1).
Grounds for relief not asserted in the proceedings leading to judgment of conviction are thereafter barred unless the movant demonstrates: (1) cause for the procedural fault and (2) prejudice from a violation of the movant's rights. The bars to relief are inapplicable to a jurisdictional challenge or to a colorable claim or miscarriage of justice stemming from a constitutional violation that "under mines the fundamental legality, reliability, integrity or fairness of the proceeding leading to the judgment of conviction."
Super.Ct.Crim.R. 61(i)(3).
Super.Ct.Crim.R. 61(i)(5).
Each of McRae's claims are premised on allegations of ineffective assistance of counsel. Thus, McRae has minimally raised counsel's effectiveness in his four grounds for relief. McRae has therefore seemingly alleged sufficient cause for not having asserted these grounds for relief at trial and on direct appeal. These types of claims are not normally subject to the procedural default rule, in part because the Delaware Supreme Court will not generally hear such claims for the first time on direct appeal. For this reason, many defendants, including McRae, allege ineffective assistance of counsel in order to overcome the procedural default.
However, this path creates confusion if the defendant does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards. The United States Supreme Court has held that:
State v. Gattis, Del. Super., ID No. 90004567DI-R2, Barron, J. (Dec. 28, 1995) (Mem. Op.) at 8.
[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that the responsibility for the default be imputed to the State, which may not "conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance"; ineffective assistance of counsel then is cause for a procedural default.
Murray v. Carrier, 477 U.S. 478, 488 (1986).
A movant who interprets the final sentence of the quoted passage to mean that he can simply assert ineffectiveness and thereby meet the cause requirement will miss the mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant must engage in the two part analysis enunciated in Strickland v. Washington and adopted by the Delaware Supreme Court in Albury v. State.
466 U.S. 668 (1984) ("Strickland").
Del. Supr., 551 A.2d 53 (1988).
The Strickland test requires the movant show that counsel's errors were so grievous that his performance fell below an objective standard of reasonableness. Second, under Strickland the movant must show there is a reasonable degree of probability that but for counsel's unprofessional error the outcome of the proceedings would have been different, that is, actual prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal.
Strickland at 687. See Dawson, 673 A.2d at 1190.
Id. at 694. Dawson, 673 A.2d at 1190; Skinner v. State, Del. Supr., 607 A.2d 1170 1172 (1992).
Righter v. State, Del. Supr., 704 A.2d 262, 264 (1997) Younger v. State, 580 A.2d at 556; Robinson v. State, Del. Supr. 562 A.2d 1184, 11 85 (1989); Skinner v. State, Del. Supr., No. 318, 1993, Holland, J. (March 31, 1994) (ORDER); Kerchliner v. State, Del. Supr., No. 451, 1994, Holland, J. (June 21, 1995) (ORDER) Accord Wells v. Petstock, 941 F.2d 253, 259-60 (3rd Cir. 1991).
Generally, a claim for ineffective assistance of counsel fails unless both prongs of the test have been established. However, the showing of prejudice is so central to this claim that the Strickland court stated "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." In other words, if the Court finds that there is no possibility of prejudice even if a defendant's allegations regarding counsel's representation were true, the Court may dispose of the claim on this basis alone. Furthermore, the defendant must rebut a "strong presumption" that trial counsel's representation fell within the "wide range of reasonable professional assistance," and this Court must eliminate from its consideration the "distorting effects of hindsight when viewing that representation."
Strickland at 687.
Id. at 697.
State v. Gattis, Mem. Op. at 9.
Strickland at 689; Dawson, 673 A.2d at 1190; Wright v. State, Del. Supr., 671 A.2d 1353, 1356 (1996).
In the case at bar, McRae attempts to show cause for his procedural default by making merely conclusory assertions of ineffectiveness of counsel. In regards to prejudice, I can discern no effort to make concrete allegations of actual prejudice or to substantiate said allegations of prejudice. These failures are fatal to McRae's Rule 61 petition and should result in summary dismissal for each of his ineffective assistance of counsel claims.
See e.g. Wright, 671 A.2d at 1356; Skinner v. State, supra; Brawley v. State, Del. Supr., No. 372, 1992, Moore, J. (Oct. 7, 1992) (ORDER); Wright v. State, Del. Supr., No. 400, 1991, Walsh, J. (Feb. 20, 19 92) (ORDER). See also, Dixon v. State, Del. Supr., No. 153, 1991, Holland, J. (Jan. 14, 1992) (ORDER).
In his first ground for relief, McRae claims his attorney should have objected to the indictment because it violated his rights under the Double Jeopardy provision of the United States Constitution. To the extent this issue tracks his arguments made on direct appeal it is barred by Rule 61(i)(4). The Supreme Court's ruling corrected any defects and McRae cannot now prove any prejudice. In fact as a result of the Supreme Court's decision, McRae received no jail time for his conviction for Possession of Cocaine. Clearly the State can charge a defendant simultaneously with the trafficking and possession with intent to deliver. The fact that the jury found McRae possessed the 11 grams of cocaine simply and not with an intent to deliver does not lead to McRae's conclusion that his indictment violated the Double Jeopardy provision.
State v. Skyers, Del. Supr., 560 A.2d 1052 (1989).
In his second claim for relief McRae argues that the State did not prove his intent to sell or otherwise distribute cocaine, as he suggests the term "trafficking" implies. He also argues that, based upon the laws of other states, he did not possess a sufficient quantity of cocaine to be convicted of Trafficking Cocaine. Additionally, a convoluted "double jeopardy" argument was raised.
There is nothing unconstitutional or ambiguous about 16 Del. C. § 4753A. This statute is a possessory statute. If a person knowingly possesses a certain quantity of cocaine or greater he is guilty of the offense. The jury concluded, beyond a reasonable doubt, that the defendant possessed more than 5 grams of crack cocaine. Defendant's assertion to impose an additional requirement regarding distribution or sale of cocaine is not required by law. As was discussed by the Delaware Supreme Court, "the underlying presumption based on quantity possessed represents a legislative judgment that anyone found with that quantity of that particular drug will be presumed to be involved in `trafficking' in narcotics on a large scale and not simply involved in an isolated or individual drug transaction." As was noted in Traylor v. State,, there is no presumption that a person is distributing narcotics simply because the title of the statute implies same — the issue is whether the State has proven the elements of the offense. With respect to the defendant's "double jeopardy" argument, this argument was addressed and rejected by the Delaware Supreme Court in a case cited by the defendant.
State v. Skyers, 560 A.2d 1052, 1054-55 (Del.Supr. 1989).
458 A.2d 1170, 1177 (Del.Supr. 1983).
State v. Skyers, 560 A.2d 1052 (Del.Supr. 1989).
Defendant has failed to identify any defect in 16 Del. C. § 4753A. As is established Delaware Law, the statute is not ambiguous. He further has failed to assert an argument in the constitutionality or clarity of the statute which would have been at best "arguable" by his counsel at trial, given the current case law and the elements of the offense. Defendant has not met the initial burden under Strickland, and therefore this claim is meritless.
See Shy v. State, 459 A.2d 1 23, 125 (1983).
In his third ground for relief, McRae claims his attorney should have argued his actual or constructive possession of the cocaine at issue. The testimony of the trial established, summarily, that the defendant was involved in a car pursuit with the police. Once he stopped his car in a trailer park, he abandoned his car and began to run. As he was running, the officer behind him, DSP Corporal Colby Cox, saw the defendant throw two baggies (which later turned out to be 11 grams of crack) in the snow and bushes. Cox illuminated the area of the drugs with his flashlight, which was seen by Corporal Matt Rigby, and continued pursuing the defendant. The defendant, being intoxicated, disheveled and exhausted, collapsed on the ground, tripping from his pants falling down a bit, not far from where the crack was thrown. The crack was located almost immediately by Corporal Rigby on top of recently fallen snow in an area that was otherwise undisturbed. The State presented evidence at trial that the substance was crack cocaine.
His counsel, in closing argument, did argue that the State did not prove the defendant possessed the cocaine the State Police found, but the jury reached an opposite conclusion. The issue of possession was a question of fact that was both litigated during the trial and argued during closing statements by defendant's counsel. The defendant has not established either prong of the Strickland analysis, and therefore his Motion, as to this ground is also meritless.
In his fourth and final claim, McRae argues that his counsel should have located, interviewed and subpoenaed two witnesses in his vehicle on the night of the crime. His counsel, by affidavit, has provided a sworn statement and a copy of a letter asking the defendant for other witness names and contact information. In response, she received none. In fact, his counsel does not recall the conversation defendant alleges occurred between them to establish part of the defendant's defense. The defendant has not demonstrated that his counsel failed to adequately investigate his case and attempt to procure witnesses.
More importantly, however, defendant fails to establish how these witnesses would have affected the outcome of the trial. His offering of their expected testimony was:
"their testimony included what actually occurred during the pursuit by the state troopers along with the area where the defendant was apprehended. The area is commonly known as a "high crime" drug area. They also would have testified that no purchase was made that evening to obtain crack cocaine based on the state's case-in-chief."
This offering, even if true, would not effect the outcome of the case, as the defendant was convicted mainly of possessory offenses after fleeing from the car (which is where the two witnesses remained). The State established, during the trial that the area in which the defendant was apprehended was a high drug area. For this reason, it would be extremely unlikely for someone in that area to just leave two bags of crack weighing 11 grams on the ground. The issue of whether or not there was a purchase of crack that night is not relevant, and in fact the defendant likely asserts this because he specifically recalls when and how he obtained the crack cocaine.
Any testimony these witnesses could have offered would not have effected the presentation of the State's case, as they were not eyewitnesses to the defendant throwing the two bags of crack cocaine. The defendant's Motion in regard to this fourth ground is meritless.
IV. CONCLUSION
After reviewing the record in this case, it is clear that McRae has failed to avoid the procedural bars of Rule 61(i). Consequently, I recommend that McRae's postconviction motion be dismissed as procedurally barred by Rule 61(i)(3) for failure to prove cause and prejudice and Rule 61(i)(4) as previously adjudicated.