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State v. Hurst

Superior Court of Delaware

August 21, 2013

State
v.
Russell Hurst

Andre Beauregard, Esquire, Brown, Shiels & Beauregard

Christopher Hutchison, Esquire Department of Justice

Dear Counsel:

On April 29, 2013 the defense filed a timely Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). On May 1, 2013 the Court established a schedule for Rule 61(g) affidavits as well as legal positions. The matter became ripe for a decision on August 16, 2013.

The Conviction

Russell Hurst ("Defendant") became the target of a drug investigation in the early fall, 2011. Police suspected the Defendant was involved in selling drugs at 10643 Concord Road in Seaford, Delaware.

The investigation led to obtaining a search warrant for 10643 Concord Road. The Governor's Task Force Special Operations Team was involved in executing the warrant. Before executing the warrant, the Defendant left the house in an automobile, but returned fifteen minutes later with a female.

The warrant was then executed by the police, initially setting off a "flash bang" diversionary device. Everyone started running. The Defendant was observed running from the house with his hands in his hooded sweatshirt. During his flight he fell on his face, but never took his hands from the hooded sweatshirt. He ran behind the house, along a fence line to an adjacent property where he was apprehended by a police dog and then the police. He was the only person who fled in that direction and on that pathway. On the other side of the fence that the Defendant ran by, police found two (2) purple Royal Crown bags which contained one hundred and fifteen (115) Oxycodone pills, 5.58 grams of crack cocaine; 9.37 grams of powder cocaine in forty-one (41) baggies, a small quantity of heroin in two (2) baggies; twenty-one (21) Clonazepam pills; and marijuana packaged in multiple baggies. He also had $320.00 on his person.

The evidence included not only the circumstantial evidence that the drugs found along the path of flight were his, but also the direct testimony of the female that was with him when he returned to the house. She was a reluctant witness who testified as to his possession of drugs. She was at the house to obtain drugs from him in return for sexual acts.

Following his conviction, the Defendant was sentenced, based upon his record as a habitual offender, to life imprisonment.

The Defendant's conviction was affirmed. Hurst vs. State, 2013 WL 85109 (Del.). (Jan. 7, 2013)

Discussion

All of Defendant's present claims are contained in Ground One. All involve claims that trial counsel was ineffective. [1]

The defense alleges that counsel was ineffective for not attempting to learn the identity of the informants who provided information used in the search warrant. If that information was known "Defendant Hurst would have been able to impeach the State's confidential informant at trial". The problem with this argument is that the informant never testified at trial. The search warrant affidavit was not evidence at trial. There was no trial evidence at all involving the informant's purchase of drugs from the Defendant which ...


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