Submitted: September 20, 2017
Cynthia F. Hurlock, Esquire, Deputy Attorney General,
Department of Justice, Wilmington, Delaware, Attorney for the
Benjamin S. Gifford, IV, Esquire, Attorney for Defendant
Markeevis McDougal. (replacing John F. Kirk, IV, Esquire
following full briefing on the motion)
COMMISSIONER'S REPORT AND RECOMMENDATION THAT
DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE
GRANTED IN PART AND DENIED IN PART.
COMMISSIONER LYNNE M. PARKER
11th day of December 2017, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court that:
AND PROCEDURAL HISTORY
September 11, 2014, following a Superior Court jury trial,
Defendant Markeevis R. McDougal was convicted of Possession
of a Firearm by a Person Prohibited ("PFBPP");
Possession of Ammunition by a Person Prohibited
("PABPP"), and Carrying a Concealed Deadly Weapon
January 23, 2015, McDougal was sentenced to a total of
nineteen years of Level V incarceration, suspended after
eleven years, followed by decreasing levels of supervision.
Specifically, McDougal was sentenced to eleven years at Level
V on the PFBPP conviction, ten years of which are minimum
mandatory pursuant to 11 Del, C. § 1448. On the
CCDW conviction, McDougal was sentenced to four years at
Level V suspended for 18 months at Level III. On the PABPP
conviction, McDougal was sentenced to four years at Level V
suspended for 18 months at Level III.
McDougal filed a direct appeal to the Delaware Supreme Court.
On November 16, 2015, the Delaware Supreme Court affirmed the
judgment of the Superior Court.
November 20, 2013 at approximately 2 a.m., Wilmington police
officers responded to reports of a domestic dispute on West
6th Street in Wilmington.
the officers turned on to 6th Street, they
observed a small group of women pointing at a silver car and
screaming "he hit her." Due to this, the police
parked in front of the silver car.
the patrol car was coming to a stop, McDougal exited the
silver car from the front driver side. One of the officers
ordered McDougal to put his hands up and come towards him.
McDougal complied with the officer's demands, leaving the
door to the silver car open. The officer placed McDougal in
the back of the patrol car.
alleged victim of the domestic dispute was still in the
silver car. The police officers approached the passenger side
of the vehicle and made contact with the female passenger,
Tracy Brown. She was huddled against the door and crying. As
one of the officers was speaking with Brown, the other police
officer looked to see if there were any passengers in the
back of the vehicle.
Because it was difficult for the officer to see into the
backseat due to the vehicle's tinted windows, he stepped
in the "V" area between the open door and the
vehicle's frame. He observed a silver handgun with brown
grips behind the driver's seat. The gun was left
undisturbed in the vehicle. Brown was then removed the
After Brown was removed from the vehicle, the officer asked
her who owned the vehicle. She replied "it's both of
ours." She was then asked if she minded if the officer
searched the car, and she said "no".
police officer then returned to the silver car. At this point
the door was closed, although it is unclear who closed it.
The officer opened the door and again observed the handgun
behind the driver's seat. Brown then ran over and stood
between the door and the car, attempting to block where the
officer had seen the weapon. Brown was removed from the area,
the door to the vehicle was shut by the police officer, and
the police waited for the evidence detection unit to collect
When the officer from the evidence detection unit arrived, he
removed the firearm, a Kimber .45 ACP semi-automatic handgun.
The officer cleared the gun, which entails ejecting the
magazine and any cartridge located in the chamber, to make it
safe. The firearm was loaded with eight cartridges, including
seven in the magazine and one in the chamber.
Although the firearm was tested for DNA and fingerprints,
there was nothing of any value found to identify who had
handled the firearm.
trial, the defense called a witness, Maurice Harding, who
claimed that the firearm was his, that McDougal did not know
anything about the firearm, and that he brought the firearm
along with him for protection but decided to leave it in the
vehicle when he exited the vehicle to buy some
drugs. Harding's Affidavit to this effect
was dated August 25, 2014. Harding denied at trial that he
was cellmates with McDougal at the time he provided his
Affidavit. The State established on rebuttal that
McDougal and Harding were, in fact, cellmates from August 10,
2014 and remained cellmates at the time of trial (September
Harding also claimed that before exiting the vehicle to buy
the drugs, he was with McDougal and his own girlfriend.
Harding further testified that it was his own girlfriend that
had been sitting in the front passenger seat. Harding claimed
that he and his girlfriend got out of the car, leaving his
gun behind in the car, and was only away for about 10
minutes, when he returned to see the police at the
car. He had no idea who Brown was, he did not
see her in the vehicle, and did not place her at the scene of
McDougal was arrested and indicted on charges of PFBPP, PABPP
and CCDW. He was convicted of all three charges.
RULE 61 MOTION
June 8, 2016, McDougal filed a motion for postconviction
relief along with a request for the appointment of counsel.
The motion for appointment of counsel was granted and on
December 27, 2016, counsel was appointed. A briefing schedule
March 22, 2017, Rule 61 counsel, John F. Kirk, IV, Esquire,
filed an Amended Motion for Postconviction Relief. On April
26, 2017, McDougal filed a pro se supplement to the
Amended Motion filed by counsel, raising one additional
issue. Thereafter, McDougal's trial counsel submitted an
Affidavit responding to McDougal's ineffective assistance
of counsel claims, the State filed a response to
Defendant's motion, and Rule 61 counsel filed a reply
Following full briefing on the motion, Mr. Kirk became
employed with the Public Defender's Office, and new
counsel, Benjamin Gifford, Esquire, was appointed to replace
Mr. Kirk as McDougal's Rule 61 counsel.
the subject motion, McDougal, through Rule 61 counsel,
asserted the following grounds for relief: 1) the theory of
constructive possession upon which the counts of PFBPP and
PABPP were based was improperly presented to the jury; and 2)
defense counsel was ineffective for failing to object to an
impermissible comment made by the prosecutor during closing
arguments. McDougal, pro se, raises an additional
issue that defense counsel was ineffective for stipulating
that McDougal was a person prohibited and not severing the
CCDW charge from the PFBPP and PABPP charges. McDougal
asserts that trial counsel was ineffective as to these three
claims for failing to object and raise these issues.
PFBPP and PABPP Convictions Should be Vacated and a New Trial
McDougal is correct in his claim that the theory of
constructive possession upon which the counts of PFBPP and
PABPP were based was improperly presented to the jury.
McDougal's Trial Counsel, in his Affidavit in response to
McDougal's Rule 61 motion, admits that he failed to catch
the improper instruction and object to it. The
convictions for PFBPP and PABPP should be vacated and a new
trial held on these charges.
establish constructive possession for PFBPP and PABPP, the
State must prove the defendant: (1) knew the location of the
gun (or ammunition); (2) had the ability to exercise dominion
and control over the gun (or ammunition), and (3)
intended to exercise dominion and control over the
gun (or ammunition).
defendant's intention is a required element of
the constructive possession jury instruction when a defendant
is charged with PFBPP and PABPP.
Gallman v. State, is a case involving charges of
possession of a deadly weapon by person prohibited (PDWPP)
and CCDW. In Gallman, like the subject action, a gun
was found in the vehicle occupied by the defendant. The same
three elements needed to be established for a PDWPP
conviction as for a PFBPP and PABPP conviction. In
Gallman, the trial court gave the same jury
instruction on the PDWPP charge as the trial court gave in
this case on the PFBPP charge. In Gallman, the trial
court gave the following instruction on constructive
possession for PDWPP:
"Constructive possession" means that the weapon was
within the defendant's reasonable control; that is, on or
about [the defendant's] person, premises, belongings or
vehicle. In other words, defendant had constructive
possession over the weapon if she had both the knowledge of
the weapon's presence and the power at the time to
exercise control over the weapon.
trial court in this case gave the same instruction on the
PFBPP charge as the Gallman court gave on the PDWPP
Gallman, the Delaware Supreme Court held that this
instruction on constructive possession was not a correct
statement of the law because the trial court did not inform
the jury that to convict the defendant of PDWPP, it was
required to find that the defendant intended to
exercise dominion and control over the destructive
Delaware Supreme Court held that a jury instruction on the
law of constructive possession for PDWPP (as well as PFBPP
and PABPP), which accurately states the law, is as follows:
Constructive possession means that the deadly weapon was
within the defendant's reasonable control. That is, it
was about his person, premises, belongings, or vehicle. In
other words, the defendant had constructive possession over
the deadly weapon if he had both the power and the
intention, at a given time, to exercise control over
the deadly weapon, either directly or through another
person. (emphasis added).
This accurate jury instruction was not given in
Gallman nor was it given in the subject action. In
the subject action, neither the written jury instruction on
the PFBPP charge nor the instruction as read to the
jury contained the language "had both
the power and the intention, at a given time, to
Gallman, the Delaware Supreme Court held that even
if the jury believed that the defendant knew the weapon was
present, it is a proper defense to the PDWPP charge that
defendant had no intention to exercise control over it. A
defendant has constructive possession over a firearm only if
the defendant has both the power and the intention, at a
given time, to exercise control over it either directly or
through another person.
Although a party is not entitled to a particular jury
instruction, a party does enjoy the "unqualified
right" to a correct statement of the law. In
Gallman, the Delaware Supreme Court held that the
defendant's unqualified right to a correct statement of
law was violated when the trial court's instruction on
the constructive possession component of the PDWPP charge
omitted the state of mind required for guilt. The trial court
did not correctly state the law so the jury could perform its
duty. The jury instructions omitted that in
order to ...