Submitted: Aug. 28, 2013.
Rehearing En Banc Denied Oct. 18, 2013.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Court Below: Superior Court of the State of Delaware in and for New Castle County, Cr. ID No. 0903019123A.
Before STEELE, Chief Justice, HOLLAND and JACOBS, Justices.
MYRON T. STEELE, Chief Justice.
This 30th day of September 2013, it appears to the Court that:
1. Defendant-Appellant Michael Rodriguez appeals the Superior Court's Order dated December 28, 2012, denying his motion for postconviction relief.
2. On March 17, 2009, Rodriguez was shot. Surgeons at Christiana Hospital recovered a bullet from him after he presented himself for medical treatment. Christiana Hospital staff later turned it over to the police. The bullet was used as evidence against Rodriguez in a trial for the burglary of Lamont Johnson's home. Rodriguez's trial counsel failed to move to suppress the bullet as evidence obtained in violation of the Fourth Amendment.
3. On March 15, 2010, Rodriguez was convicted of Assault Second Degree, Conspiracy Second Degree, Possession of a Firearm During the Commission of a Felony, Burglary First Degree, Aggravated Menacing, and Reckless Endangering First Degree.
4. During the trial, the clerk mistakenly told the jury that Rodriguez was charged with Possession of a Deadly Weapon by a Person Prohibited. Rodriguez motioned to strike the jury panel, but the Superior Court refused, giving prompt curative instructions. Rodriguez appealed his conviction to this Court, arguing the Superior Court should have struck the jury, but his appeal failed.
5. Rodriguez then filed a motion for postconviction relief in the Superior Court under Rule 61 of the Superior Court Rules of Criminal Procedure, alleging that his trial counsel was ineffective because he failed to object to the seizure and testing of the bullet recovered during surgery. Rodriguez argues this seizure violated his rights under the Fourth Amendment to the United States Constitution, and Article 1, § 6 of the Delaware Constitution. The Superior Court denied his motion on December 28, 2012. Rodriguez appeals this denial.
6. Before this court, Rodriguez argues that his Fourth Amendment rights have been violated because (1) he had a property right in the bullet which was used as evidence against him; (2) he did not abandon the bullet for the purpose of the Fourth Amendment; (3) Christiana Hospital was acting as an agent for the police, rather than in its private ...