IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE
IN AND FOR SUSSEX COUNTY
STATE OF DELAWARE,
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v.
ANTONIO DRUMMOND
Defendant.
I.D. No. 0407019483
Submitted: March 7, 2008
Decided: May 30, 2008
Decision upon Motion for Postconviction Relief
OPINION
On September 20, 2007, Antonio Drummond (“defendant”) filed a pro se Motion for
Postconviction Relief pursuant to Superior Court Criminal Rule 61 (“Rule 61”). For the reasons
set forth below, the defendant’s motion is DENIED.
Factual and Procedural Background
On July 23, 2004, Detective Ronald Marzec (“Detective Marzec”), a Delmar Police
Officer, assigned to the United States Department of Justice Drug Enforcement Administration
(DEA), began investigating reports of drug dealing at the Burton Village apartment complex in
Rehoboth Beach, Delaware. Detective Marzec gave Kevin Williams (“Williams”), a confidential
informant, $200 in marked currency and instructed him to attempt to purchase drugs at Burton
Village. This was not the first undercover drug purchase at Burton Village. Several people had
been arrested for violating drug laws since the DEA began investigating Burton Village one and
one-half years prior to this incident.
Williams drove to Burton Village and spoke with the defendant about purchasing oneeighth ounce of crack cocaine. After they spoke in Williams’ car, the defendant exited the car,
walked to his white Ford Explorer and removed a small black bag from inside. The defendant
then returned to Williams’ car and removed a set of scales and another bag containing five to six
ounces of cocaine from the black bag. The defendant weighed a small amount of cocaine to sell
to Williams. The defendant then gave Williams an eighth of an ounce of cocaine in exchange for
$200 cash. A camera had been hidden in Williams’ car before the buy. It recorded the
transaction in both audio and video. The videotape of the transaction was properly admitted into
evidence. 1 Williams also wore a “Kel” listening device which allowed Detective Marzec to
listen to Williams’ conversation with the defendant in real-time. 2 After the sale, the informant
advised Detective Marzec of the approximate amount of cocaine in the defendant’s possession as
well as the license plate number of the defendant’s white Ford Explorer. Officer Jamie Riddle
(“Officer Riddle”), a Rehoboth Beach police officer, followed the defendant’s vehicle.
Williams met with Detective Marzec and explained the details of the drug transaction.
Officer Riddle was then instructed to perform a traffic stop of the defendant’s car which he
commenced. The defendant did not stop. After traveling a short distance, the defendant’s
vehicle stopped momentarily and a passenger ran out of the car. The passenger was later
identified as Jesse Drummond, defendant’s thirteen year-old cousin. Jesse was apprehended with
the black bag described by the informant.
After Jesse’s exit, the defendant continued traveling for a short distance. He then stopped
his vehicle and attempted to flee on foot but was apprehended by the police. The police found
1
2
Trial Tr. 52, 79, June 13, 2005.
Id. at 37-38.
2
over $1,300 in the defendant’s possession including the marked bills Detective Marzec had given
to the informant.
On June 14, 2005, the defendant was convicted of Trafficking in Cocaine and Possession
with Intent to Deliver Cocaine. He was sentenced on January 30, 2006, to 8 years at level five
on the trafficking charge and 5 years at level five followed by six months at level four work
release on the possession with intent to deliver charge. He appealed to the Delaware Supreme
Court. On October 5, 2006, the Supreme Court affirmed his conviction. The defendant’s
attorney at trial was Michael R. Abram, Esquire. His attorney on appeal was Joseph M.
Bernstein, Esquire.
On September 20, 2007, the defendant timely filed a pro se Motion for Postconviction
Relief in this Court pursuant to Rule 61. The defendant alleges six grounds for relief in his
postconviction motion, none of which were raised on appeal: (1) that there was no valid arrest
warrant; (2) that he was denied a preliminary hearing; (3) that the State failed to produce a
properly signed grand jury indictment; (4) that there was insufficient evidence to support the
jury’s conviction on the charge of possession with intent to deliver cocaine; (5) that he was
deprived of a fair trial because the State changed experts without notice; and (6) that his counsel
was ineffective.
Because the defendant failed to raise any of these arguments on direct appeal, the
arguments are procedurally barred pursuant to Rule 61(i)(3) unless he can demonstrate “cause”
for failure to raise the claims and “prejudice” as a result of the default. 3
3
Oney v. State, 482 A.2d 756, 758 (Del. 1984).
3
1. Arrest Warrant
The defendant alleges that there was no valid warrant for his arrest. This claim was
formerly adjudicated at a Suppression Hearing on February 14, 2005. The Court found that the
police had probable cause to arrest the defendant under 11 Del. C. § 904(b)(1). Because this
ground for relief was formerly adjudicated, consideration of this claim is barred pursuant to
Superior Court Criminal Rule 61(i)(4).
2. Preliminary Hearing
The defendant alleges that he was denied a preliminary hearing. There is no
constitutional due process right to a preliminary hearing. 4 Because both the preliminary hearing
and the indictment serve to establish probable cause, an indictment eliminates the need for a
preliminary hearing. 5 A preliminary hearing was scheduled for August 19, 2004. On August 16,
2004, the defendant was indicted by a Grand Jury in Superior Court, thus eliminating the need
for the preliminary hearing.
3. Indictment
The defendant alleges that the State has failed to produce a properly signed grand jury
indictment. He alleges that the indictment was not signed by either the Attorney General or a
Deputy Attorney General. The indictment in the filed returned by the Supreme Court after its
review on appeal is dated August 16, 2004. It was returned by the grand jury and bears
signatures from the grand jury foreman and secretary. The signature line of the Attorney General
reads: “s/M. JANE BRADY”. The indictment does not bear the signature of a Deputy Attorney
General.
4
5
Jenkins v. State, 305 A.2d 610, 614-15 (Del. 1973).
State v. Robinson, 417 A.2d 953, 961 (Del. 1980).
4
Attached to the State’s Affidavit filed in connection with this motion for postconviction
relief is the State’s copy of the original indictment. 6 The signature line of the Attorney General
reads: “s/M. JANE BRADY”. It bears the signature of the Deputy Attorney General, David
Hume. This copy was retained by the Department of Justice before was sent to the grand jury. It
is the same copy that was sent to the defendant in discovery.
Superior Court Criminal Rule 7(c)(1) states that the indictment “shall be signed by the
attorney general.” 7 The record is ambiguous as to whether the indictment was signed. 8
Assuming, arguendo, that it was not, the defendant has failed to show why this claim is not
subject to the procedural bar of Rule 61(i)(3).
4. Insufficient Evidence
The defendant argues there was insufficient evidence to support the jury’s conviction on
the charge of possession with intent to deliver cocaine. This claim was not presented at trial and
it must fail if “any rational trier of fact, viewing the evidence in the light most favorable to the
State, could find the defendant guilty beyond a reasonable doubt.” 9
It is clear from the record that the defendant sold cocaine to Williams, a police informant,
in a “controlled buy.” 10 As evidence that the cocaine was possessed with the intent to deliver
and was not for personal use, Detective Marzec cited three specific items: (1) the scale the
defendant used to weigh and apportion cocaine; (2) $1,368 in cash found on the defendant at the
time of arrest; and (3) the videotape of the defendant distributing the crack cocaine to the
6
Hume Aff. 1 (No. 96).
Super. Ct. Crim. R. 7(c)(1).
8
See generally Smokes v. City of Wilmington, 282 A.2d 634 (Del. Super Ct. 1971)(declining to address the validity
of an indictment not signed by the Attorney General or his Deputy).
9
Robertson v. State, 596 A.2d 1345, 1355 (Del. 1991).
10
A controlled buy is the purchase of a controlled substance from a confidential source who is not a police officer.
A direct buy is a purchase of controlled substances directly from a police officer. Trial Tr. 36, June 13, 2005.
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confidential informant. 11 When viewed in a light most favorable to the State, the evidence
presented was sufficient to support a guilty verdict.
5. Identification of Expert Witness
The defendant alleges that he was deprived of a fair trial because the State changed the
expert testifying that the drugs were intended for distribution and not for personal consumption,
from Detective Wright to Detective Marzec. The State notified defense counsel prior to trial that
Detective Marzec would be testifying in place of Detective Wright. 12 The defendant’s argument
lacks merit.
6. Ineffective Assistance of Counsel
The defendant’s remaining claims allege ineffective assistance of counsel. To prevail on
a postconviction relief claim based on ineffective assistance of counsel, the defendant is required
to show that: (1) counsel’s representation fell below an objective standard of reasonableness; and
(2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. 13 The defendant must satisfy the proof requirements
of both prongs in order to succeed on an ineffective assistance of counsel claim. Failure to do so
as to one prong will render the claim unsuccessful, and the Court need not address the remaining
prong. 14 To show that counsel’s representation fell below an objective standard of
reasonableness, the defendant bears a heavy burden. He must overcome the strong presumption
that his counsel’s representation was professionally reasonable. 15
11
Trial Tr. 78-79, June 14, 2005.
Id. at 73.
13
Strickland v. Washington, 466 U.S. 668, 694 (1984).
14
Id. at 697.
15
Id. at 689.
12
6
The defendant argues that counsel was ineffective by allowing trial to proceed without a
proper arrest warrant or indictment. As to the arrest warrant, a suppression hearing was held and
the Court denied his motion. The record is inconclusive regarding the signed indictment.
The defendant next argues that trial counsel was ineffective “in failing to challenge or
support defendant’s denial of scheduled preliminary examination even though being informed by
his client.” 16 As stated above, the defendant was not entitled to a preliminary hearing once the
indictment was returned. The defendant has failed to show how counsel’s actions fell below an
objective standard of reasonableness. He has also failed to show actual prejudice.
The defendant also argues that counsel was ineffective for failing to object to the State’s
request to amend the indictment. The Court has power to amend indictment as to matters of
form, but not as to matters of substance, as long as no new, additional or different charge is made
thereby and if the accused will not suffer prejudice to substantial rights. The rule is designed to
afford the accused two protections: (1) notice of the charges against him so that he has the
opportunity to prepare an adequate defense; and (2) prevention from twice being placed in
jeopardy for the same offense. 17 Here, the amendment to the indictment eliminated the charge of
Distribution of Cocaine to a Minor. As counsel’s failure to object to the amended indictment did
not prejudice the defendant, this claim is barred.
16
17
Def.’s Mot. 7 (No. 85).
Keller v. State, 435 A.2d 152, 155 (Del. 1981).
7
The defendant’s final allegation is that counsel was incompetent, lacked skill, failed to
investigate, was unprepared, and was ineffective in his cross-examination of Williams. While
this Court will accept all well-pleaded allegations as true, it will ignore conclusory allegations,
such as these, which lack specific supporting factual allegations. 18
IT IS SO ORDERED.
_____________________________
Judge Susan C. Del Pesco
Original to Prothonotary
xc:
Joseph Bernstein, Esq.
Michael Abram, Esq.
David Hume, IV, Esq.
Antonio Drummond
18
Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998); Younger v. State, 580 A.2d 552, 555 (Del. 1990).
8
