C. Cohee, Esq., Deputy Attorney General, Department of
Justice, for the State of Delaware.
O. Cuffee, Pro se.
COMMISSIONER'S REPORT AND RECOMMENDATION
M Freud Commissioner.
Defendant's Motion for Postconviction Relief Pursuant to
Superior Court Criminal Rule 61
defendant, Micah O. Cuffee ("Cuffee") was found
guilty, following a jury trial on August 7, 2013, as charged,
of one count of Attempted Theft of a Senior, 11 Del.
C. § 841; one count of Conspiracy in the Second
Degree, 11 Del. C. § 512; and one count of
Criminal Mischief < $1, 000, 11 Del. C. §
811. A presentence investigation was ordered by the Court.
The State filed a motion to declare Cuffee a habitual
offender pursuant to 11 Del. C. §
4214(a). The motion was granted on October 15,
2013. Cuffee was "...sentenced to eight years of Level V
incarceration for Attempted Theft, two years of Level V
incarceration, suspended for one year of Level III probation,
for Conspiracy in the Second Degree, and a fine of $250 for
waived his right to counsel on appeal and was permitted to
represent himself in his appeal to the Delaware Supreme
Court. The issues on appeal were noted by the Court as
Cuffee claims: (i) the Superior Court erred in allowing the
State to amend the indictment before trial and during trial;
(ii) the Superior Court erred in admitting a picture of
Cuffee the night of his arrest; (iii) the prosecutor made
improper statements during his opening and closing arguments;
(iv) the State committed discovery and Brady
violations by failing to produce a recording of police radio
communications; and (v) Cuffee was deprived of his right to
Supreme Court, on October 14, 2014, affirmed Cuffee's
conviction and sentence finding each of his claims
August 11, 2015 Cuffee filed a Motion for Postconviction
Relief pursuant to Superior Court Rule 61. He then filed a
motion to amend the motion for postconviction relief. On
October 20, 2015 Cuffee was granted permission to file an
Amended Motion to replace the original motion. The Amended
Motion for Postconviction Relief and Memorandum were filed on
December 29, 2015 to replace the motion filed on August 11,
2015. The pending amended motion alleges several grounds for
relief including ineffective assistance of Trial Counsel.
Following are the facts as set forth by the Delaware Supreme
(2) On the night of September 19, 2012, a resident of a
development located near Walker Road in Dover heard a
vehicle, a screeching, metallic noise like something was
being dragged, and voices outside the back of her townhouse.
Office buildings, which were closed for the day, were located
behind the caller's townhouse. The resident called 911 to
report the noises at approximately 10:30 p.m. Corporal
Gregory Hopkins and other members of the Dover police
responded to the 911 call.
(3) Initially, Hopkins and the other police officers checked
businesses and communities along Walker Road for the source
of the reported noises. Hopkins checked 1155 Walker Road and
did not see anything there. Hopkins then went to the 911
caller's townhouse and spoke to her about what she had
heard in order to pinpoint the location of the noises. Based
on that conversation, Hopkins drove back to 1155 Walker Road,
which was located behind the townhouse.
(4) Hopkins walked around the building located at 1155 Walker
Road and saw four, disconnected air conditioning units behind
the building and near a shed. The air conditioners had been
cut from the building located at 1155 Walker Road. Hopkins
reported his findings and it was decided that he would stay
in the area to conduct surveillance in case someone returned
to pick up the disconnected air conditioners. Other officers
set up a perimeter near Walker Road.
() Shortly after Hopkins concealed himself under some trees
to monitor the area where the air conditioners were located,
he observed a maroon minivan, with no headlights on, driving
in from Walker Road. After driving into the parking lot that
was closest to the disconnected air conditioners, the minivan
began backing up over a bed of rocks near the air
conditioners and became stuck.
(6) Hopkins watched the minivan occupants attempt to remove
the minivan from the rocks. They were unsuccessful and called
somebody for assistance. Although Hopkins could see the
occupants of the minivan walk around it, he could not see
them at all times. Hopkins observed a white pick-up truck
drive in from Walker Road and tow the minivan off of the
rocks. Cuffee's cousin, Walter Cuffee, testified that
Cuffee called him the night of September 19, 2012 for
assistance. Walter Cuffee drove his white pick-up to Walker
Road, where he testified that he picked up Cuffee and Mark
McDonald, and then helped Cuffee and McDonald tow the minivan
from the rocks. After Hopkins watched the white pick-up truck
and maroon minivan leave the parking lot, he saw that the
disconnected air conditioners were no longer where he had
previously seen them. Hopkins radioed police units on Walker
Road to report that the air conditioners had been taken and
that both the white pick-up truck and maroon minivan should
be stopped. Hopkins then walked around the area and saw that
the air conditioners had been moved to the other side of the
(7) Police stopped the white pick-up truck and maroon
minivan. Cuffee was driving the minivan and McDonald was the
passenger. Both men were arrested. In a search of the
minivan, the police found a pair of bolt cutters, Channellock
pliers, a flashlight, and two pairs of work gloves. All of
the seats, except for the driver seat and front passenger
seat, had been removed from the minivan. Cuffee's
daughter testified that she owned the minivan and that the
equipment in the minivan belonged to her
April 6, 2016, Cuffee filed a "Motion to Amend
Postconviction." He requested ".. .that this
Honorable Court to allow him to amend a portion of his
postconviction to correct the grounds raised in the
Postconviction to correlate with the attached Memorandum of
Law and Supporting Facts. ...the Defendant rushed to get the
Amended Motion filed [on December 29, 2015] according to the
Court's Order. In doing so, the Defendant failed to
include 3 grounds that were in his Memorandum of Law and
Supporting Facts. ...The Defendant is not seeking to amend
any of the supporting facts in his Memorandum of Law and
Supporting facts." The Court granted the motion to amend
and on April 6, 2016 Cuffee filed a Second Amended Motion for
Postconviction Relief listing the grounds as follows:
I: The Court erred when it allowed the State to amend the
Indictment. Please see attached Memorandum of Law and
II: Prosecutorial Misconduct.
A. Prosecutor made false and misleading statements to jury.
B. Improper vouching by prosecutor.
C. Improper vouching for State ...