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State v. Moody

Superior Court of Delaware

November 30, 2017

ROBERT MOODY, Defendant.

          Submitted: August 28, 2017

         Upon Defendant's Motion for Postconviction Relief, DENIED.

          Cynthia Hurlock, Deputy Attorney General, Department of Justice.

          Julianne E. Murray, Esquire, Murray Phillips P.A.


          M. JANE BRADY JUDGE.


         In the early morning hours of July 25, 2013, a Wilmington Police Officer, while patrolling a high-crime neighborhood, observed Defendant Robert Moody riding his bicycle with a noticeable bulge around his right rear waistline. Based on the Officer's training and experience, he believed Defendant was armed with a firearm. The Officer ordered the Defendant to stop and sounded his air-horn. The Defendant looked directly at the Officer and performed a "security check" of his right rear waistline with his hand.[2] The Defendant then sped up and turned down an alleyway behind the vacant Walt's Flavor Crisp store. The Officer intercepted the Defendant at the end of the alley and ordered him to get on the ground, at which point the Officer noticed the Defendant no longer had a bulge in his waistline. The Defendant was arrested after the Officer discovered a .357 Magnum loaded with 3 live rounds of ammunition on the roof of one of the buildings that bordered the alley. On March 21, 2014, after a two-day trial, a jury convicted Defendant of Carrying a Concealed Deadly Weapon ("CCDW"), Possession of a Firearm By a Person Prohibited ("PFBPP"), and Possession of Ammunition By a Person Prohibited ("PABPP"). On May 16, 2014, Defendant filed an untimely pro se Motion to Set Aside the Verdict. In the interest of justice, this Court considered the motion as a motion for a new trial, and denied the motion. On July 24, 2014, Defendant was sentenced to a total of 21 years at Level V imprisonment, suspected after 5 years for decreasing levels of supervision. A Notice of Appeal was timely filed on August 5, 2014, and Defendant's trial counsel filed a Rule 26(c) brief and Motion to Withdraw as Counsel. The Supreme Court granted the Motion to Withdraw, denied the Motion to Affirm, and appointed appellate counsel to represent Defendant in a direct appeal. On February 26, 2016, the Supreme Court of Delaware affirmed Defendant's convictions. Defendant filed a timely pro se Motion for Postconviction Relief on April 28, 2016 and a Motion for Appointment of Counsel on May 24, 2016. In his pro se Motion, Defendant raised issues of ineffective assistance of counsel against both his trial and appellate counsels. This Court directed the Office of Conflict Counsel to appoint counsel for the Defendant, and on October 3, 2016, counsel was appointed. Appellate counsel filed a Rule 61(g) Affidavit addressing Defendant's claims on June 13, 2016, and trial counsel filed a Rule 61(g) Affidavit on November 9, 2016. On February 10, 2017, Defendant filed an Amended Motion for Postconviction Relief alleging two claims of ineffective assistance of counsel against trial counsel only.[3] Trial counsel filed a Supplemental Affidavit on March, 27, 2017, addressing Defendant's claims in the Amended Motion. After two requests for extension from appointed counsel and one extension request from the State, this Court issued an amended scheduling order, giving the State until July 10, 2017 to file a response addressing the merits of the claim, and Defendant until August 18, 2017 to file a final response. The Court received Defendant's final submission on August 28, 2017. This is the Court's decision.


         A. Defendant's Amended Motion

         Defendant makes two claims of ineffective assistance against his trial counsel. First, Defendant claims trial counsel was ineffective because he stipulated the Defendant was a person prohibited, which resulted in prejudice against the Defendant.[4] Defendant asserts that this Court has a longstanding practice to permit severance of the PFBPP charge because "the jury 'may be unable to compartmentalize their judgment of guilt or innocence with regard to each of the separate counts of the indictment, and may infer a general criminal disposition.'"[5] Defendant further asserts there is no sound reason for trial counsel to admit the Defendant was a person prohibited, and that stipulation to that fact likely confused the jury and it is "reasonably likely that the jury convicted Defendant of PFBPP based solely on the stipulation."[6] Defendant also claims "the stipulation made it more likely for the jury to convict Mr. Moody of the Carrying a Concealed Weapon charge."[7] Defendant asserts that the stipulation "left the jury free to speculate as to Mr. Moody's alleged propensity to possess and carry guns."[8]

         Defendant then alleges trial counsel was ineffective for failing to move to suppress the gun found as a result of an improper stop. Defendant argues the police lacked a reasonable and articulable suspicion to order him to stop; therefore, the seizure of the gun was a result of an illegal stop and trial counsel should have objected to its admission at trial. Defendant contends that trial counsel's failure to move to suppress the gun prejudiced the Defendant.

         B. Trial Counsel's Affidavit

         Defendant's trial counsel filed two Affidavits responding to Defendant's claims. He denies any allegations of ineffective assistance of counsel.

         Trial counsel avers that he "believed there was no good faith basis to file a motion to sever given client's defense of actual innocence." Trial counsel contends that the Court did not have a consistent approach to Person Prohibited charges at that time.[9] He further avers that his strategy was to draw "as little attention as possible to client's prohibited status and focusing on the reasonable doubt evidence and arguments concerning constructive possession."[10] Trial counsel also avers he "believed there was no good faith basis to file a motion to suppress" upon review of the evidence and relevant search and seizure law.[11]

         C. State's Response

         The State contends Defendant's trial counsel's stipulation was a "sound strategic decision that minimized any prejudice from the charges being tried together and that also kept Moody's prior felony conviction from being presented to the jury at trial on the PFBPP charge."[12] The State further contends that Defendant fails to satisfy the prejudice prong of Strickland, [13] even if counsel was ineffective.[14]

         The State contends trial counsel's decision to not move for suppression of the gun fell within the wide range of reasonable professional assistance. The State argues the Officer had a reasonable suspicion to order Defendant to stop, and later had probable cause to arrest the Defendant; therefore, a motion to suppress would have been denied, and Defendant's claim fails for lack of prejudice.[15]


         To prevail on claims of ineffective assistance of counsel, the defendant must meet the two-prong test set forth by the United States Supreme Court.[16] Defendant must establish that: (i) his counsel's representation was deficient in that it fell below an objective standard of reasonableness; and (ii) that deficient performance prejudiced the defense.[17] When assessing counsel's performance, a court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."[18] A defendant must overcome the presumption that the challenged action or lack of action by counsel might be considered "sound trial strategy."[19] Additionally, defendant must show that the deficiencies in counsel's performance were prejudicial to the defense, [20] in that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.[21]


         A. Pr ...

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