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State v. Coverdale

Superior Court of Delaware

April 18, 2017

STATE OF DELAWARE
v.
MICHAEL D. COVERDALE, Defendant.

          DATED SUBMITTED: March 17, 2017

          Tasha Marie Stevens, Esquire and Melissa S. Lofland, Esquire, P.O. Box 250, Georgetown, DE 19947 and Thomas D. Donovan, Esquire, Kent County Courthouse, 38 The Green, Suite 259, Dover, DE 19901, counsel for Defendant.

          Rebecca E. Anderson, Esquire, 114 E. Market Street, Georgetown, DE 19947, on behalf of the State of Delaware.

          MEMORANDUM OPINION ON DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF MOTION GRANTED

          STOKES, J.

         Michael D. Coverdale ("defendant" or "Coverdale") has filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61") wherein he seeks to vacate a portion of his guilty plea on the ground it was not knowingly, voluntarily or intelligently entered. He bases his claim for relief upon the fact that the State of Delaware ("the State") misrepresented that it did not have any Brady[1] materials regarding the chemist who tested the drugs in one of his cases before he entered the plea, a misrepresentation upon which he and his counsel relied when entering the guilty plea. This is my decision on the pending motion.

         Four sets of charges were pending against defendant at the time he entered his guilty plea on February 19, 2016:

1) Def. ID# 1501012420: This case consisted of 9 counts.[2] Defendant pled guilty to 2 counts: drug dealing of heroin Tier 4 and possession of a firearm by a person prohibited.
2) Def. ID# 1506013665: This case consisted of 3 counts of drug dealing plus an aggravator. All charges were nolle prossed as a result of the plea.
3) Defendant ID# 1507007288: This case consisted of 3 counts.[3] Defendant pled guilty to 1 count of drug dealing Tier 2 (a lesser of drug dealing Tier 4) and the other two counts were nolle prossed.
4) Defendant ID# 1507017419: This case consisted of 1 count of drug dealing plus an aggravator. This charge was nolle prossed as a part of the plea.

         Defendant had one set of attorneys for the case of State v. Cover dale, Def. ID# 1501012420 and another attorney for the cases of State v. Coverdale, Def. ID#s 1506013665, 1507007288, and 1507017419. The same Deputy Attorney General appeared on behalf of the State of Delaware ("the State") in these cases as well as in the linked case of State of Delaware v. Randolph Clayton, Def. ID# 1506019597 ("Clayton").

         FACTS

         On February 20, 2015, defense counsel filed a request for Brady material.[4]Bipin Mody ("Mody"), an employee of the Division of Forensic Science ("DFS"), was the chemist who tested the drugs in Def. ID# 1501012420. He was not the chemist who tested the drugs in the other three cases.

         Throughout 2015, DFS chastised Mody for poor work habits which called into question chain of custody, appropriate testing procedures, the correct identification of drugs, and his credibility. The following problems with his work were documented: Mody's work was constantly being returned to him for more editing; Mody did not always rerun drug samples after being told to do so; some cases had to be retested because Mody was not following the proper testing procedures; Mody did not always list all of the defendants on documents for suspected drug samples that he was testing; Mody was not always candid when confronted about his errors and omissions; Mody was not able to keep up with his workload, resulting in considerable pressure being brought on him by his supervisors to keep up; Mody did not always follow the procedures prohibiting multiple drug lockers from being opened simultaneously; Mody sometimes entered incorrect lot numbers for reagents; Mody did not always put the correct locks on the correct lockers; cases were returned to Mody because he had not entered the correct information into his reports; Mody did not follow the proper procedures when doing his proficiency tests; Mody left evidence unattended on his bench in the laboratory.[5]

         On January 20, 2016, the State informed Mody that it was going to dismiss him for his systematic failure to follow laboratory policies and procedures in reference to his testing of suspected drug samples and reporting his findings to the Department of Justice in a timely manner.[6] On February 3, 2016, Mody resigned rather than be terminated.

         The final case review scheduled in Coverdale's case for February 17, 2016, was continued at defendant's request until February 19, 2016.

         On February 17, 2016, the State sent a letter to defendant's counsel notifying them that Mody had resigned from his employment.[7] Defense counsel received the letter on February 18, 2016. The State sent defense counsel in Clayton a similar letter, also dated February 17, 2016.[8]

Final case review in defendant's case took place on February 19, 2016. On this date, the final business day before trial, the State owed to defendant all of the Brady material it had because defendant had requested the production of that information early in the litigation.[9]

         The transcript of this proceeding shows that at case review, the State, well-aware it owed any Brady material it had to the defense, misrepresented it did not have any Brady material regarding Mody.

[DEFENSE COUNSEL]: ... [Y]esterday we received some information that has substantially effected [sic] our, I guess our duties as counsel, as well as our client's ability to make a decision as far as this case.
My co-counsel and I have been reviewing some issues with the lab reports and the drug evidence, and looking over that quite a bit because trial was approaching, and then yesterday we received a letter from the AG's office that the chemist, who had done all of the testing in our case, resigned. So we had no information as to why, what happened prior, if there was suspension, if there was misconduct or anything. So that was actually clocked in around 3:11 yesterday and we received it at about 4:00 yesterday. So very, very little time to look into what happened.
So today we were advised by the State that it was simply that the chemist was lazy but they believe that he would still be available.
THE COURT:[10] For trial next week?
[DEFENSE COUNSEL]: For trial, which is supposed to start on Monday. However, that quantum of information doesn't really satisfy. I think our duty as practitioners to our client just to say he's lazy, if he's lazy, how did that affect his testing of the alleged drugs in this case.
THE COURT: So he was fired and the reason he was fired had, according to the State, had nothing to do with his misconduct. He was allowed to resign. But why he was allowed to resign had nothing do with misconduct but simply his productivity?
[PROSECUTOR]: That is correct, Your Honor.
[DEFENSE COUNSEL]: That's what we have been advised at this point. There's nothing to support that and I would request that information. ***
THE COURT: What more would you want her to provide you? His personnel file might not be very open to the public.
[DEFENSE COUNSEL]: Not the entire file but what led to this series of events. My understanding was that he was actually suspended pending discipline up to termination. If that's the case, what brought this forth? Was it he said he tested - he's lazy and he said he tested 20 bags but he tested six and he didn't test the rest type deal. I think it affects the integrity of the information that substantially affects this case.
***
[PROSECUTOR]: Your Honor, the chemist in question is Bipin Modi [sic]. He was placed on administrative leave on January 20th and decided to resign on February 3rd. The only issue is his turnaround time on case work. There's absolutely no evidence or indication, anything Brady material, and no indication that he was doing anything illegal, tested positive for any illegal substance, no indication that he was dry-labbing or not testing items. It was simply his turnaround time on case work. We disclosed on all pending Bipin Modi [sic] cases out of an abundance of caution. There is no Brady information that the State is aware of.
The State is of the position that we didn't even have to disclose this information. It's no different from a police officer retiring or resigning or someone working at SUSCOM deciding to retire or resign. The only reason this is being blown out of proportion is because of the prior OCME issues. Mr. Modi [sic], there's absolutely no indication that he was involved in anything illegal. We just disclosed out of an abundance of caution. (Emphasis added).[11]

         Defense counsel requested a continuance because of this recent disclosure. Rather than grant a continuance, the Court ruled it would allow defense counsel to talk to Mody on Monday, February 22, 2016, the day trial was scheduled to begin, and then trial would commence the next day. The Court did not order the production of Mody's personnel file.

The transcript shows the following additional exchange that day:
[PROSECUTOR]: Your Honor, I did check with Wilmington and the only issue is his turnaround time on case work. There's nothing else.[12]

         The prosecutor adamantly stated, several times, that there was no Brady material on Mody when, in fact, substantial and serious impeachment material existed regarding Mody.[13] The Wilmington Deputy Attorney General's detailed knowledge about why Mody was leaving his job is imputed to the prosecutor in Sussex County on February 19, 2016.[14] Because that knowledge is imputed, there is no need to hold a hearing to determine: 1) whether the prosecutor did not have all the information regarding Mody and was merely relying on the Wilmington Deputy Attorney General's statement that Mody's only issue was his laziness; 2) whether the prosecutor did not understand what constitutes Brady material and that the information regarding Mody was Brady material; or 3) whether the prosecutor, with an awareness of all of the materials and an understanding that Brady required production of them, consciously hid this information. Thus, the prosecutor in Coverdale's case is imputed with the knowledge that Mody's work was constantly being returned to him for more editing; Mody did not always rerun drug samples after being told to do so; some cases had to be retested because Mody was not following the proper testing procedures; Mody did not always list all of the defendants on documents for suspected drug samples that he was testing; Mody was not always candid when confronted about his errors and omissions; Mody was not able to keep up with his workload, resulting in considerable pressure being brought on him by his supervisors to keep up; Mody did not always follow the procedures prohibiting multiple drug lockers from being opened simultaneously; Mody sometimes entered incorrect lot numbers for reagents; Mody did not always put the correct locks on the correct lockers; cases were returned to Mody because he had not entered the correct information into his reports; Mody did not follow the proper procedures when doing his proficiency tests; and Mody left evidence unattended on his bench in the laboratory.

         On February 19, 2016, the prosecutor knew that the Brady materials on Mody were significant to defendant, who was facing a trial where an undisputed identification of drugs and an undisputed linking of those drugs to defendant were essential elements of the State's case against him. The defense could have used this information to impeach Mody with regards to his testing procedures, his identification of the drugs in defendant's case, the chain of custody, and Mody's credibility. The State's characterizations of the nature of the materials it had on Mody were substantial misrepresentations and the State affirmatively concealed this Brady material.

         A review of the transcript of the February 19, 2016 case review establishes that defense counsel relied on the State's representation that there was no Brady material of which the State was aware regarding Mody and that defense counsel relied on the misrepresentation in advising Coverdale to accept the plea, which would expire at 4:30 p.m. that afternoon. I find that the material misrepresentations and concealment of the Brady materials induced defense counsel to entertain a plea and the misrepresentations and concealment induced defendant to enter the plea. Stated another way, had the prosecutor been forthcoming and truthful that Brady material on Mody existed, trial counsel would not have encouraged defendant to enter the plea and defendant would not have entered the plea he entered that day.

         However, defendant, in ignorance of the true material facts, did enter into the plea.[15]Nothing about Mody was mentioned during the plea colloquy. The plea colloquy was thorough and complete and defendant admitted the crimes charged. Defendant was sentenced that day.

         The State's misrepresentation of the information about Mody was exposed in the Clayton proceedings. Between the end of March, 2016 and August, 2016, several court proceedings took place in Clayton where the topic was the nature of the information the State had on Mody.

         When Clayton's trial counsel learned of Mody's resignation, he sent a letter requesting Mody's personnel file and he also sent a subpoena seeking that personnel file. The prosecutor explained that she reviewed the file as did a Deputy Attorney General in Wilmington. Neither considered there to be any Brady material in the file. The Court disagreed, ruling that it was not a close case at all, that Mody was leaving the State's employment because of his systematic failure to follow the laboratory policies and procedures in reference to testing suspect drug samples and reporting his findings to the Department of Justice in a timely manner.[16] The Court ruled that the Brady materials pertaining to Mody were to be released to defense counsel, it required the State to provide this information to all defense counsel and pro se defendants in 2015-2016 cases where Mody was the chemist, and specifically, the Court required that a packet of information be sent to Coverdale's attorney.[17] The State filed a motion to reargue, requesting the Court allow Mody's supervisors to testify to show that the documents were not Brady materials. The Court denied the motion to reargue and ordered, again, that the State provide the Brady information on Mody.[18] Ultimately, the Court did not dismiss the case due to a violation of Brady, ruling there was no prejudice because defendant Clayton received the Brady information substantially before trial. In the end, the Court did not address the issue of prosecutorial misconduct despite defense counsel's requests that it do so.

         The State thereafter filed a nolle prosse of all the drug charges against the defendant in the Clayton case.

         In a letter dated July 21, 2016, the State informed Coverdale's counsel of the Court's ruling in the Clayton case regarding Mody.[19]

         In emails dated August 10 and August 17, 2016, the State informed Coverdale's defense counsel that the State did not intend to take any further action in Coverdale's case despite the information sent on July 21, 2016; i.e, it would not be dropping the drug charges against Coverdale.[20]

         On October 7, 2016, defendant filed his motion for postconviction relief.

          DISCUSSION

         In the usual case, the Court looks at the procedural bars before considering the merits. However, in this case, the findings and legal conclusions the Court makes on the merits are integral to its findings on the applicability of the procedural ...


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