IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) Plaintiff, ) ) ) v. ) Cr. ID. No. 1303017883 ) ) ) ANTHONY L. DALE , ) ) Defendant. )

Date submitted : April 15 , 2016

Date decided: April 19 , 2016

COMMISSIONER’S REPORT AND RECOMMENDATION ON

DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
Periann Doko , Esquire, Deputy Attorney General, Delaware Department of Justice , 820 N. French St. 7 th Floor, Criminal Division, Wilmington, Delaware, 19801 , Attorney for the State

. Patrick J. Collins, Esquire, 716 North Tatnall Street, Suite 300, Wilmington, Delaware 19801. Attorney for the Defendant.

MANNING , Commissioner1 This 19 th day of April 2016 , u pon consideration of defendant Anthony L.
Dale ’s m otion for postconviction r elief (“Motion”) , I find the following: Procedural History On September 24, 2012, Dale was indicted on the following charges:
Possession of a Firearm by a Person Prohibited (11 Del. C. § 1448); Carrying a Concealed Deadly Weapon (11 Del. C. § 1442); Possession of Ammunition by a Person Prohibited (11 Del. C. § 1448); and Aggravated Possession (16 Del. C. § 4754(3)). Prior to trial, the State entered a nolle prosequi on the count of Aggravated Possession. Following a two day jury trial, Dale was found guilty on February 25, 2014 , of Possession of a Firearm by a Person Prohibited, Car rying a Concealed Deadly Weapon and Possession of Ammunition by a Person Prohibited. He was sentenc ed on May 24, 2013 , to four years at Level V followed by probation.
Dale originally filed a timely pro se Rule 61 motion for postconviction r elief on July 31 , 2014. Dale also filed a Notice of Appeal to the Delaware Supreme Court but the ap peal was dismis sed on February 11, 2015 , after he filed a Notice of Voluntary Dismissal of Appeal. 1

1 D.I. 43.2 Pursuant t o Superior Court Rule 132, Dale’s Motion was referred to a C ommissioner on July 10, 2015. Conflict Counsel (“Rule 61 Counsel”) was appointed to represent Dale o n his Motion on October 10, 20 1 5. 2 On December 7, 2015, with the assistance of Rule 61 Counsel , Dale filed an
amended m otion for postconviction r elief

. Trial Counsel did not file an Affidavit in response to Dale’s Motion per this Court’s October 2, 2015 , Scheduling Order

. 3
The State filed its response in opposition to Dale’s Motion on March 31, 2016. 4 Dale filed a Reply to the State’s Response on April 15, 2016. Based upon my review o f Dale ’s Motion and the trial transcripts I do not see
the need for an evidentiary hearing

. In my opinion, t he arguments made by Dale in his Motion can be adequately determined with the factual record cr eated at trial.
Dale’ s amended claim s for p ostconviction relief are : Ground o ne : Trial Counsel was ineffective for stipulating that Dale was a person prohibited, resulting in prejudice to Dale.
Ground t wo : Trial Counsel was ineffective for failing to move to suppress the gun found during the improper search; Dale suffered constitutional prejudice.

2 D.I. 47. By Order of the Delaware Supreme Court, dated November 20, 2014, Trial Counsel was placed on Disability Inactive Status and is no longer a practicing member of the Delaware Bar.

3 D.I. 49.

4 D.I. 57.3 Legal Standard To prevail on an ineffective assistance of counsel claim, a defendant must
meet the two

- pronged Strickland test by showing that: (1) counsel performed at a level “below an objective standard of reasonableness” and that, (2) the deficient performance pre judiced the defense. 5 The first prong requires the defendant to show by a preponderance of the evidence that defense counsel was not reasonably competent, while the second prong requires the defendant to show that there is a reasonable probability that, bu t for defense counsel’s unprofessional errors, the outcome of the proceedings would have been different. 6 When a court examines a claim of ineffective assistance of counsel, it may address either prong first; where one prong is not met, the claim may be rejected without contemplating the other prong. 7 Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice. 8 An error by defense counsel, even if professionally unreasona ble,

5 Strickland v. Washington , 466 U.S. 668, 687

- 88, 694 (1984).

6 Id.

7 Id. at 697.

8 Younger v. State , 580 A.2d 552, 556 (Del. 1990).4 does not warrant setting aside the judgment of conviction if the error had no effect on the judgment. 9 In considering post

- trial attacks on counsel, Strickland cautions that trial counsel’s performance should be reviewed from his or her pe rspective a t the time decisions were being made. 10 A fair assessment of attorney performance requires that every effort be made to eliminate the distorting efforts of hindsight. Second guessing or “Monday morning quarterbacking” should be avoided. 11 The procedural r equirements of Superior Court Criminal Rule 61 must be addressed before considering the merits of any argument. 12 Dale ’s Motion was timely filed , is not repetitive, and neither of his arguments were previously adjudicated in any forum . T herefore , Dale’s Motion is not procedurally barr ed under Superior Court Crim. Rule 61 (i)(1)

- (4) so I will address each claim on its
merits.
FACTS After closely reviewing the trial transcript, I find the following facts were
established at trial:

9 Strickland , 466 U.S.at 691.

10 Id.

11 Id.

12 See Younger , 580 A.2d at 554.5 On June 19, 201 3, Sergeant Looney of the Wilmington Police Department was responding to a call regarding a group of disorderly subjects loitering in the area of the 2300 block of North Carter Street in Wilmington, Delaware. The area
is known for high incidents of crime. 13 Sergeant Looney was wearing a standard Wilmington police uniform and was driving an unmarked Ford Explorer SUV that
was outfitted with a n emergency lighting package. 14 As Sergeant Looney drove down Carter Street, he observed a black male,
who he identi fied at trial as Dale , sitting in the front passenger seat of a parked Nissan Altima. When Sergeant Looney’s car pulled parallel to the Altima, Dale quickly laid his upper body over the center console and onto the driver’s seat area with his arms on the driver’s floor area and his head on the steering wheel. Finding this behavior suspicious, Sergeant Looney “squared” the block and drove back down Carter Street. Again, Dale laid his upper body onto the dri ver’s seat
with his arms on the driver’s floor and his head on the steering wheel. Finding Dale’s action s suspicious, Sergeant Looney drove around the block to drive past the vehicle for a third time. Once again, Dale laid down onto the
driver’s seat wi th his head on the steering wheel and his right arm and hand in the
foot

- well area. At that point, Sergeant Looney parked his police vehicle slightly

13 Tr. at 36.

14 Tr. at 19.6 behind the Altima, turned his high

- beam headlights on, and approached the passenger side door on foot.
Da le was observed peeking between the seats to get a look out of the back window at Sergeant Looney as he approached . When Sergeant Looney reached the passenger’s side door, he again observed Dale l a ying across the driver’s seat with
hi s hands on the driver ’s floor. U sing his flashlight to get his attention, Sergeant Looney asked Dale to sit up and open the vehicle door. Dale complied, opening the passenger’s side door, and then handed Sergeant Looney his Delaware
identification card upon request. Sergeant Looney testified that Dale seemed
nervous and “was very hesitant in his responses and just seemed to be looking around his, he was clearly, like, oh, no, the police are here.” 15 At some point during
the encounter o fficers learned that the vehicle was not registered to Dale or anyone with the same surname

. 16
Due to D ale’s nervousness and his behavior inside of the vehicle, Sergeant Looney asked him to exit the vehicle. While this was occurring, another officer, Officer Ham, opened the driver’s door and ch ecked the floor area where Dale’s
hands had been observed on the prior occasions. Dale was not handcuffed or physically restrained during this portion of the encounter . Officer Ham could see

15 Tr. at 30.

16 Tr. at 31.7 that there was something under the driver’s floor mat as it was folded and did not
sit “flush” to the floor. When O fficer Ham lifted the floor mat he immediately
observed a loaded .22 caliber semi

- automatic handgun. A criminal history check
of Dale revealed that he had a prior felony conviction for Possession with In tent to
Deliver a Schedule II Controlled Substance from 2007

. Dale was immediately searched and taken into custody. Subsequent DNA testing by the State revealed a mixed DNA profile on the gun, but with male DNA present

. Dale’s DNA could neither be incl uded nor excluded. Fingerprint testing of the gun was incon clusive. Ground One: Stipulating that Dale was a Person Prohibited Dale argues that Trial Counsel was ineffective because he stipulated that Dale was a person prohibited

— as opposed to moving to sever the charge altogether . By stipulating, Dale argues, the jury learned that he was prohibited and this left them “free to speculate as to why” and to “draw the impermissible conclusion that [he] was a person of bad character wi th a general criminal disposition.” 17 Dale also argues that this stipulation “likely confused the jury” as he was not in direct possession of a firearm. Dale argues that “[n]o trial strategy exists that would justify admitting to the jury in a weapons case that the defendant

17 Motion at 14.8 is prohibited. That is why it is routine practice [in this Court] to sever the person prohibited charge... .” 18 The State argues that Dale was not prejudiced by Trial Counsel’s decision to stipulate and that it was a reasonable tactical decision. By stipulating that Dale was prohibited, the State argues that Trial Counsel sought to “sanitize” the
indictment and minimize any prejudice that would be created if the jury learned of
Dale’s 2007 conviction for Possession with Inte nt to Deliver Cocaine. Additionally , th e State argues that “the evidence [of the prior conviction] would have been admissible regardless of the stipulation.” 19 With this point I

cannot so readily agree. As correctly noted by Rule 61 Counsel, the trial court
would ha ve first needed to conduct a balancing test pursuant to Delaware Rule of Evidence 609(a)(1) before the conviction could have been used by the State to impeach Dale , and even then, only if he testified. I recognize that t here are contexts in which sanitizing an indictment, as
oppose d to moving to sever, may make tactical sense. For example, the defendant who fully expects to testify and counsel knows he will be cross

- examined about prior conviction s anyway. In such cases, the Court will usually iss ue an appropriate limiting instruction to the jury about how to consider such evidence . However,

18 Id

.
19 Response at 7.9 under the facts of this case, I can discern no reasonable trial strategy for not moving t o sever the Person Prohibited charge completely. Simply put, Dale ha d nothing to lose by moving to sever the charge to a separate trial, but much to gain.
Trial Counsel’s stipulation was a half

- measure

— at best. The Superior Court almost universally grants motion s to sever such charges due to the inherent prejudice create d when the jury learns that a defendant has a prior felony conviction. Trial Counsel’s failure to move to sever the Person Prohibited charge was professionally unreasonable under the fats of this case and
constituted ineffective assistance of counsel. Although Trial Counsel’s representation o f Dale was unreasonable , before a
conviction can be overturned , Strickland require s that there is a “reasonable probability” that the outcome of the trial would have been different but for Trial Counsel’s profe ssional errors. 20 The facts in this case show that Dale was sitting in
the front passenger seat of a car that did not belong to him, at night, in a high crime

area , a bloc k or so away from his house while acting in a mann er most people
would find suspicious . Upon investig ation by the police, a handgun was found in close proximity to where Dale was seen repeatedly reaching. I t appears that the jury reasonably concluded that Dale hid the gun un der the driver’s side floor mat

20 Strickland , 466 U.S.at 691.10 (or was retrieving it) when Sergea nt Looney drove past each time and then , finally,

a pproached Dale on foot. The quest ion that must be addressed then becomes: is there a “reasonable probability” the jury would have acquitted Dale had they not know he was prohibited? To be clear, this is a close call in my opinion . However, I must
conclude that while there is a possibility Dale would have been acquitted, there is

not a reasonable probability of it. Under Strickland , “probability” does not mean

a mere “possibility”

— it is a higher standard . In Neal v. State , the Delaware Supreme Court expounded on the Strickland prejudice burden of proof analysis : A reasonable probability of a different result requires a probability sufficient to undermine confidence in the outcome . Although this standard is not mathematically precise and does not necessarily require a showing of more likely than not, Strickland requires more than a showing merely that the conduct could have or might have or it is possible that it would have led to a different result. The likelihood of a different result must be substantial, not just conceivable. 21

In the context of Dale’s very unusual behavior and the fact that he seemed to be reaching or looking for something in the driver’s foot

- well area of the car each

t ime Sergeant Looney drove past , combined with his nervous behavior once approached by the police, I do not think it likely that the outcome of Dale’s trial would have changed had the jury not known he was prohibited. Trial Counsel’s

21 Neal v. State , 80 A.3d 935, 942 (Del. 2013) (internal quotations and citations omitted).11 failure to sever the P erson Prohibited charge was objectively unreasonable

— however, it did not prejudice Dale.
Ground Two: Failure to file a suppress ion motion Normally, Trial Counsel will file an affidavit with the Court explaining why
he or she elected not to file a motion to suppress. Typically, the explanation is that counsel felt there was no good faith basis to do so. In this case, however, Trial Counsel’s thinking and reason for not filing a suppression motion is unknown. To that point, I will s kip the first prong of Strickland and simply presume that Trial Counsel’s failure to file a motion to suppress in this case was objectively
unreasonable. As previously noted, Strickland requires that Trial Counsel’s unreasonable
conduct resulted in actu al prejudice to Dale before his conviction will be
overturned . Therefore, the question becomes: is there a reasonable probability that a motion to suppress would have been successful and change the outcome of the

case ? I note that the search and sei zure in this case was warrant less , thus the onus would have been on the State to show by a preponderance of the evidence that the
search was reasonable 22

— advantage Dale. Additionally, a successful motion to suppress as to the gun would have been case dispositiv e , except for the drug charge
which the State dropped prior to trial.

22 See Hunter v. State , 783 A.2d 558, 560 (Del. 2001).12 As I see it, there are two distinct issues that need to be addressed: (1) the
search and seizure of Dale himself ; and (2) the search of the car

. Issue One Sergeant Looney’s decision to approached Dale, asked him for his identification and question him was reasonable in light of the circumstances present ; namely D ale’s unusual and repeated behavior. In my opinion, Sergeant Looney conducted a valid “ Terry

- sto p ” pursuant to 11 Del. C . § 1902. 23 The trial record does not address why Sergeant Looney felt the need to search Dale, but it is
irrelevant since the charge relating to the contraband found on Dale was dropped prior to trial. Additionally, it is also impo rtant to note that Officer Ham’s search of
the driver’s side of the car was nearly simultaneous to Sergeant Looney’s questioning , was not a search incident to Dale’s arrest and does not appear motivated by anything other than officer safety

. 24 Even if the decision to search Dale’s person was unreasonable, it had no effect on the outcome of the case as the

23 § 1902 Questioning and detaining suspects. (a) A peace officer may stop any person abroad, or in a public place, who the officer has reasonable ground to suspect is committing, has committed or is about to commit a crime, and may demand the person's name, address, business abroad and destination. (b) Any pers on so questioned who fails to give identification or explain the person's actions to the satisfaction of the officer may be detained and further questioned and investigated. (c) The total period of detention provided for by this section shall not exceed 2 hours. The detention is not an arrest and shall not be recorded as an arrest in any official record. At the end of the detention the person so detained shall be released or be arrested and charged with a crime.

24 Tr. at 30.13 weapon was located as part of a contemporaneous , but independent , search of the
vehicle.
Issue Two The State argu es that the search of the v ehicle was justified on grounds of officer safety , an d even if it was not, Dale lacked standing to object to the search. I agree with the State on the both points.
The facts indic ate that while being questioned , Dale was not restrained and easily could have gained access to the interior of the vehicle and any items within.
Because of Dale’s actions , it was certainly reasonable for the officers to be
concerned about what was under the floor mat and to conduct a cursory search of
the car interior for any weapons that might be used against them. This fact is especially true in light of what appeared to be an object visible under the driver’s
side floor mat prior to the search . Even if a reviewing court were to disagree with my conclusion on this issue, I believe it would not change the outcome of the case
as Dale lacked standing to object to the search of the car in any event

. In order to have standing, Dale must “demonstrate [a] legitimate expectation of privacy in the invaded place before he may challenge the validity of a search or
seizure .” 25 In the context of an automobile, typically this means being the owner or an operator in legitimate possession of the car

. It is well established law that a

25 Mills v. State , 2006 WL 1027 202, at *1 (Del. 2006)

.14 mere passenger in a car typically lacks standing to object to a search of the car
itself. 26 Here , there is no evidence in the trial record , or supplemented by Rule 61 Counsel, to show that Dale was either. In fact, the record strongly suggests that Dale was a trespasser in the vehicle

. Dale argues in his Reply that “if the passenger is seized personally as a result of the stop, then he has standing to object to the seizure... .” 27 Dale cites to
Rakas v. Illinois, supra, to support his argument . The problem with Dale’s argument , however, is that the police did not actually “ stop” the car he was hiding
in

— it was parked on a public street . The police did not seize Dale in the traditional “car stop” sense; rather, they simply ordered him to step out of the passenger seat of an a lready stopp ed car. T he fact that Dale was in a car almost
becomes irrelevant to the 4 th Amendment analysis. T he basic analysis, however,

r emains the same: did Dale have a reasonable expectation of privacy in whatever
area the police searched

— be it a trashcan, sidew alk, park bench or the front porch to a residence? In this case, the answer is still the same: no. Without proof that Trial Counsel reasonably could have established standing, Dale would most likely have lost a suppression motion as to the car.

26 See Jarvis v. State , 600 A.2d 38, 41 n. 1 (Del. 1991) (citing Rakas v. Ill inois , 439 U.S. 128, (1978)

. 27 Reply at 6.15 Therefore , Dale was not prejudiced by Trial Counsel’s failure to file a motion to
suppress. Conclusion Trial Counsel’s failures were professionally unreasonable and constituted ineffective assistance of counsel. However, they ultimately did not prejudice Dale

no r undermine confidence in the reliability of his trial. For the foregoing reasons,
Dale’ s Motion should be DENIED

. IT IS SO RECOMMENDED.

/s/ Bradley V. Manning BRADLEY V. MANNING , Commissioner

oc: Prothonotary cc: Defendant