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State v. McDougal

Superior Court of Delaware

December 11, 2017

STATE OF DELAWARE, Plaintiff,
v.
MARKEEVIS R. MCDOUGAL, Defendant.

          Submitted: September 20, 2017

          Cynthia F. Hurlock, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          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

         This 11th day of December 2017, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND AND PROCEDURAL HISTORY

         1. On 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 ("CCDW").

         2. On 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.

         3.. 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.[1]

         FACTS

         4. On November 20, 2013 at approximately 2 a.m., Wilmington police officers responded to reports of a domestic dispute on West 6th Street in Wilmington.[2]

         5. As 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.[3]

         6. As 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.[4]

         7. The 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.[5]

         8. 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 vehicle.[6]

         9. 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".[7]

         10. The 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 the gun.[8]

         11. 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.[9]

         12. Although the firearm was tested for DNA and fingerprints, there was nothing of any value found to identify who had handled the firearm.[10]

         13. At 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.[11] 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.[12] 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 2014).[13]

         14. 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.[14] He had no idea who Brown was, he did not see her in the vehicle, and did not place her at the scene of incident.[15]

         15. McDougal was arrested and indicted on charges of PFBPP, PABPP and CCDW. He was convicted of all three charges.

         DEFENDANT'S RULE 61 MOTION

         16. On 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 was entered.

         17. On 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 thereto.

         18. 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.

         19. In 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.

         The PFBPP and PABPP Convictions Should be Vacated and a New Trial Held

         20. 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.[16] The convictions for PFBPP and PABPP should be vacated and a new trial held on these charges.

         21. To 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).[17]

         22. A defendant's intention is a required element of the constructive possession jury instruction when a defendant is charged with PFBPP and PABPP.

         23. Gallman v. State,[18] 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.[19]

         24. The trial court in this case gave the same instruction on the PFBPP charge as the Gallman court gave on the PDWPP charge.[20]

         25. In 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 weapon.[21]

         26. The 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.[22] (emphasis added).

         27. 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[23] nor the instruction as read to the jury[24] contained the language "had both the power and the intention, at a given time, to exercise control."

         28. In 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.[25]

         29. 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.[26] 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.[27] The jury instructions omitted that in order to ...


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