State of Delaware v. Stewart.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE v. RYEKI STEWART Defen dant. ) ) ) ID No. 0612022950 ) ) ) ) Submitted: August 8, 2008 Decided: September 24, 2008 On Defendant s Motion for Postconviction Relief - DENIED OPINION Brian D. Ahern, Department of Justice, 820 North French Street, Wilmington, Delaware, 19801. Attorney for the State of Delaware. Joseph M. Bernstein, Esquire, 10354 Flat Stone Loop, Bonita Springs, FL 34135. Attorn ey for R yeki Stew art. CARPEN TER, J. On this 24th day of September 2008, upon consideration of Defendant s Motion for Po stconvic tion Relie f, it appear s to the C ourt that: 1. Ryeki Stewa rt ( Defe ndant ) , has filed a Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ( Rule 61 ), to which the State has responded. At the request of the Court, Defendant s trial attorney, John S. Malik, Esquire ( Counsel ), filed an affidavit refuting the allegations of ineffective assistance of counsel. For the reasons set forth below , the Defendant s Motion for Postconviction Relief is DENIED. 2. On June 19, 2007, a stipulated trial1 was held and the Defendant was found guilty of: (1) Trafficking Cocaine over 100 Grams, (2) Possession With Intent to Deliver Cocaine, (3) Maintaining a Vehicle, and (4) Resisting Arrest. Thereafter, the Delaware Supreme Court denied the Defendant s appeal and issued a mandate on March 14, 2008. On April 16, 2008, the Defendant filed this Motion for Postconviction Relief asserting two claims of ineffective assistance of counsel. As indicated above, both the State and trial co unsel have re sponded to the Defen dant s motion and he h as since re plied. 3. Prior to addressing the merits of a postconviction relief claim, the Court must first determ ine wh ether the M otion meets th e proced ural requ irements of Rule 1 The stipulated trial was held to preserve the right of the Defendant to appeal the Court s previous denial of the suppression motion. 2 61(i).2 After re viewin g the D efendan t s presen t Motio n, the Co urt finds that the claims contained therein only allege ineffective assistance of counsel, which is not generally subject to the procedural bars of Rule 61(i).3 Theref ore, the C ourt w ill address the Defendan t s substantive arguments. 4. To prevail on a claim of ineffective assistance of couns el, a defendant must meet the two-part test set forth in Strickland v. Washington.4 First, the Defendant must establish that counsel s representation fell below an objective standard of reaso nablene ss. 5 Second, th e Defend ant must sho w that coun sel s performance was prejudicial to his defense.6 This requires a show ing that a r easonab le probab ility exists that the outcome of the proceeding would have been different but for counsel s error.7 As to the first prong, whenever evaluating the conduct of counse l, the Court must indulge a strong presumption that counsel s conduct was profess ionally reasona ble. 8 As to th e second prong , a reason able pro bability is 2 See Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990). 3 State v. Denston, 2003 WL 22293651 at *3 (Del. Super. Oct. 2, 2003) (noting that an allegation of ineffective assistance of counsel is a type of claim not 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 unless the claim was adequately raised in the lower court. ) (citing Del. Sup. Ct. R. 8). 4 466 U.S. 668 (1984). 5 Id. at 688; see also Cook v. State, 2000 WL 1177695, *3 (Del. Aug. 14, 2000). 6 Id. at 687. 7 Id. at 694; see also Wright v. State, 608 A.2d 731, 731 (Del. 1992) (citing Albury v. State, 551 A.2d 53, 58 (Del. 1988)). 8 Albury v. State, 551 A.2d 53, 59 (Del. 1998) (citing Strickland, 466 U.S. at 689). 3 defined as a probability sufficient to undermine confidence in the outc ome of the proceeding.9 5. The Defendant first claims that counsel was ineffective for failing to f ile a motion to dismiss the Defendant s drug charges once the State missed the deadline for filing the M edical Ex aminer s Repor t ( ME Report ) analyzing the substance taken from the Defendant s car at the time of his arrest. 10 The parties agree that the original deadline for filing the ME Report was Friday, June 8, 2007, j ust before the Defenda nt s Final Case Review on Monday, June 11, 2007.11 The parties also agree that the ME Report was not filed with the C ourt or pro duced to the D efendant s counsel by June 8. However, according to the Court s record, the State filed a Motion for Extension of T ime ( Extension Motion ) to produce the ME Report, which was docketed on June 12, 2007.12 Thus, the Defendant contends that at the Final Case Review on June 11, his counsel should have, at the minimum, alerted the Court to the fact that the ME Report had not been produced.13 The D efendan t claims tha t had his counsel objected to the absence of the ME Report at the Final Case Review, the Court 9 Strickland, 466 U.S. at 694. Def. s Mot. at 2; see also Def. s Reply at 1. 11 Def. s Mot. at 2; State s Reply at 2. 12 According to the Superior Court s criminal docket record, the State s motion was filed on June 12, 2007. The date on the motion is June 8, 2007 and it indicates service was made upon Mr. Malik on June 8, 2007 by first-class mail. The copy attached to Mr. Malik s affidavit as Exhibit A is time stamped as June 11, 2007. Presumably that stamp reflects the date the motion arrived at Mr. Malik s office. 13 Def. s Reply at 2. 10 4 could have excluded the report from evidence, leaving the State unable to p rosecute the case.14 While the Defendant agrees that attorneys do have wide latitude to pursue a variety of av enues in furthera nce of th eir litigation strategy, he argues that his counsel s chosen course of action d oes not amount to reasonab le strategy. 6. The Court finds that this claim of ineffe ctive assista nce of co unsel fails the two-prong test outlined in Strickland. First, cou nsel s failu re to move to dismiss the Defendant s drug charges does not qualify as deficient conduct under Strickland. In his affidavit, counsel stated: Counsel s practice was to file a motion in limine after the passage of the deadline for the M E s Rep ort and p rior to trial to exclude the ME s Report from evidence at trial if the State had failed to comply with a deadline for production of the report either scheduled in a Pretrial Order or re-scheduled by the granting of a motion to extend the deadline.15 Based on his affidavit, it appears that counsel was aware at the time of the Final Case Review that the State had filed the Extension Motion. As such, until the Extension Motion had been decided by the C ourt, ther e wou ld be no basis to file a motion in limine requesting the exclusion of the ME Report. In effect, the Court s decision would resolve the issue without further action by coun sel. If grante d, the Sta te wou ld have additional time to prod uce the re port and if denied , the State w ould be unable to present evidence as to the nature of the drugs seized, which would likely result in the 14 15 Id. at 4. Malik Aff. at ¶ 3(e). 5 case ultimately being dismissed or nolle prossed.16 The Strickland Court n oted: Judicial scrutiny of cou nsel s performance must be high ly deferen tial. It is all too tempting for a defendant to second-guess counsel s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.17 Since it appears that coun sel was a ware o f the State s timely Extension Motion prior to the Final Case Review and that such extensions were routinely being granted by the Court, 18 an argument to exclude the drugs was not ripe on June 11 as asserted by the Defen dant. As such, counsel s conduct here was appropriate and reasonable. In addition, since there is nothing to support the proposition that the Def endant s ability to properly prepare for the trial was affected by the later disclosure, the Court finds that counsel s conduct was not deficient. In other wo rds, the Defe ndant s first claim also fails the second prong of Strickland as he has no t demonstrated that counsel s deficient p erform ance pre judiced h is defens e. 7. The Defendant s second claim is that his counsel was ineffective for failing to argue at the suppression hearing that the police had not corroborated the informant s tip leading to the Defendant s arrest. 19 The Defendant asserts that the police neither saw him use a cell p hone to contact th e inform ant nor f ound h im in 16 The docket reflects that the Extension Motion was granted on June 12, 2008 and the ME Report was timely disclosed. 17 Strickland, 466 U.S. at 689 (citing Engle v. Isaac, 456 U.S. 107, 133-34 (1982)). 18 Malik Aff. at ¶ 2(e). 19 Id. at 4-5. 6 possession of a cell phone at the time of his arrest20 and that the alleged drug transaction was set up by phone, there was a lack of corroboration by the police, which rendered his arrest illegal. He further argues that counsel erred when he did not present such an argument to the Court at the suppression hearing.21 8. This claim also fails both prongs of Strickland. First, counsel did argue that the police failed to corroborate the informant s tip and that the arrest of the Defendant was invalid because the police did not have probable cause to arrest him.22 The Defen dant s arg ument is simply th at he sho uld have argued other grou nds. In his affidavit, c ounsel s tated: I do not believe that I would have argued at the suppression hearing that no ce ll phone was found on Defendant Stewart s person or in his car after his arrest, since the focu s of the su ppressio n hearin g was w hat, if any, observations had been made by the police officers prior to arresting Defendant Stewart that corroborated the tip of a first time informant with no past proven record of reliability. My position would have been that what was found on Defendant Stewart or in his vehicle after his arrest was irrelevant to any evaluation of the totality of the circumstances that existed before his arrest, which was the time period relevant to the suppression motion.23 Clearly, the decision to pursue the ground for suppression which counsel believed had the most merit and had the greatest opportunity for success is not unreasonable. Counsel made an appropriate argument at the suppression hearing and made reasonable tactical decisions regarding what suppression issues to pursue. 20 Id. at 5. Def. s Mot. at 2-3; Def. s Reply at 4-5. 22 Malik Aff. at ¶ 4(a). 23 Malik Aff. at n.5. 21 7 9. This argument also fails the second prong of Strickland. The Defendant has not shown how counsel s performance prejudiced his defense. A review of the transcript of the suppression hearing reveals that there was no opportunity for the police to observe the cell phone interaction between the Defendant and the inform ant. 24 The calls to set up the deal were made when the Defendant was in an unknown location and it was only after the Defendant had parked in the Wal-Mart parking lot and confirmed that he had arrived and the conversation had concluded that the informant located the Defendant s vehicle.25 The Court is confident the police would have preferred to coordinate the cell phone interaction so it could be observed, however, the circumstances simply did not provide that opportunity. In addition, the Defendant asserts that no cell phone was recovered, but that fact is not part of the record presented to the Court either at the suppression hearing or at the stip ulated trial. As a result, not only were couns el s decisio ns appr opriate an d reason able, but h is failure to argue the Def endant s cell phone theory had no effect on the outcome of the case. Thus, the Court finds trial counsel s conduct was consistent with the requirements established in Strickland. 24 25 Suppression Hr g Tr. at 9-12. Id. 8 10. For the reasons set forth above, the Defendant s Motion for Postconviction Relief is hereby DENIED. IT IS SO ORDERED. Judge William C. Carpenter, Jr. 9
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