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State v. Gibson

Superior Court of Delaware

December 19, 2017


          Submitted: September 15, 2017

         Upon Defendant's Motion for Postconviction Relief: DENIED.

          James K. McCloskey, Deputy Attorney General.

          Benjamin S. Gifford, Esquire.

          Abigail M. LeGrow Judge.

         This 19th day of December, 2017, upon consideration of Defendant's Motion for Postconviction Relief (the "Motion") under Superior Court Criminal Rule 61 ("Rule 61") and the record in this case, it appears to the Court that:


         1. On January 15, 2015, Laquan Gibson was convicted of Tier II Drug Dealing, Possession of Firearm by Person Prohibited, and Possession of Marijuana. The convictions stemmed from a search of Gibson's home and car on November 5, 2013. A confidential informant ("CI") told Detective Joseph Leary that Gibson placed controlled substances and weapons in his Ford Taurus. Gibson was on probation at the time, and Detective Leary therefore alerted Probation Officer Kate Sweeney, who applied for and received an administrative warrant to search Gibson's home at 716 East 6th Street, Wilmington, Delaware.

         2. When Detective Leary and Officer Sweeney went to Gibson's residence, a female, later identified as Idamae Stallings, informed them Gibson was not home. As the officers searched the home, Gibson returned and was apprehended by Officer Brian Vettori, who remained outside as security. While searching the home, the officers recovered a handgun, multiple bags of marijuana, a bag containing white powder, and keys to a Ford Taurus and a Mercury Mountaineer. Detective Leary called a K-9 unit to search the cars based on the CI's tip that Gibson stored drugs and weapons in his Taurus. After the K-9 detected drugs in the Taurus, Detective Leary had the cars towed and obtained a warrant to search the vehicles. The vehicle search uncovered a bag of heroin in the Mountaineer and 202 bags of heroin in the Taurus.

         3. When the officers searched Gibson at the Wilmington police station, they found $340 in cash on his person. During a post-Miranda interview, Gibson admitted the guns and drugs belonged to him, and that he placed the drugs in the cars approximately a week and a half before the search. In early 2014, shortly after the officers sent the drugs to the Office of the Chief Medical Examiner ("OCME") for analysis, allegations of evidence tampering engulfed the OCME. The drugs were then sent to NMS Labs for analysis.[1] In compliance with this Court's ruling in State v. Irwin, [2] the State also sent the drugs to the newly-created Division of Forensic Science ("DFS"), where they were analyzed by Patricia Phillips. The DFS and NMS Labs drug reports both confirmed the presence of marijuana and heroin.

         4. At trial, Gibson was represented by counsel ("Trial Counsel"). Before trial, Gibson stipulated to the chain of custody and admission of the drug reports into evidence. Trial began on January 13, 2015. At trial, Gibson recanted his post- Miranda confession and alleged the drugs belonged to his recently-deceased friend, Jason Turner. Gibson alleged Turner lived at his house and stored drugs there. On cross-examination, the State questioned why Gibson did not accuse Turner until after his death, whereupon Gibson denied knowing Turner had died. Gibson testified he did not keep in regular contact with people outside prison and did not make frequent phone calls. The State then further questioned Gibson's credibility by showing Gibson made forty-five calls just in the month of October. The State then asked:

THE STATE: And never in those calls it came up that your close boy, Jason Turner, was killed?
THE DEFENDANT: No, sir.[3]

         5. The jury found Gibson guilty of Tier II Drug Dealing, Possession of a Firearm by Person Prohibited, and Possession of Marijuana. Gibson appealed to the Supreme Court, which affirmed his conviction on March 11, 2016. Gibson filed a pro se motion for postconviction relief on April 25, 2016. The Court appointed counsel to represent Gibson, and counsel filed an amended Motion on April 3, 2017.

         6. In his amended Motion, Gibson alleges he is entitled to relief because (1) the State engaged in misconduct that prejudicially affected his substantial rights, and (2) Trial Counsel was ineffective. As to prosecutorial misconduct, Gibson first argues the State withheld impeachment evidence related to Phillips and the drug tests in violation of Brady v. Maryland[4] Second, Gibson argues the State withheld the records of his October 2014 prison phone calls in violation of Superior Court Criminal Rule 16. Third, he contends the State made improper comments during Gibson's cross-examination. As to Trial Counsel's performance, Gibson argues Trial Counsel was ineffective because he (i) failed to request a recess to review Gibson's October prison calls when the existence of those calls was raised at trial, and (ii) failed to object to the State's improper editorialization during Gibson's cross-examination.[5] Trial Counsel supplemented the record and responded to the Motion by affidavit.[6] The State also filed a brief opposing the Motion.


         A. Procedural Bars to Gibson's claims

         7. Before addressing the merits of any claim for postconviction relief, this Court first must determine whether the motion procedurally is barred under Rule 61.[7] A motion for postconviction relief may be barred for timeliness and repetition, among other things. A motion filed under Rule 61 is untimely if it is filed more than one year after a final judgment of conviction.[8] A defendant also is barred from filing successive motions for postconviction relief.[9] The rule further prohibits motions based on any ground for relief that was not asserted in the proceedings leading up to the judgment of conviction, unless the movant demonstrates "cause for relief from the procedural default" and "prejudice from violation of the movant's rights."[10] Finally, the rule bars consideration of any ground for relief that previously was adjudicated in the case.[11]

         8. Gibson's Motion was filed less than a year after his sentence, and it therefore is timely. This is Gibson's first motion for postconviction relief, and the Motion therefore is not barred as successive. Gibson's claims of ineffective assistance of counsel could not be raised at an earlier stage in the proceedings.[12] As to Gibson's claims of prosecutorial misconduct, however, all his arguments, save one, could have been raised at trial and on direct appeal. That is, Gibson did not object at trial or on appeal to the State's alleged improper editorialization during Gibson's cross-examination and did not object at trial or on appeal to the State's failure to provide Trial Counsel with the recordings of Gibson's prison calls from October 4, 2014 through October 29, 2014. Because Gibson did not raise these allegations at trial or on his direct appeal to the Supreme Court, they are barred under Rule 61(i)(3). Gibson has not shown cause why he should be relieved of this procedural default, nor has he pleaded that the bars are inapplicable under Rule 61(i)(5).

         9. The Motion, however, does argue Gibson was unaware of the impeachment evidence related to Phillips before his appeal and therefore had "cause" for his failure to timely raise the argument.[13] Accordingly, the Court may consider the merits of Gibson's claims related to Phillips, along with the ineffective assistance of counsel claims.

         B. Nondisclosure of Phillips' misconduct was not a Brady violation.

         10. Gibson argues the State violated Brady by failing to disclose impeachment evidence related to Phillips. When applying Brady, the Delaware Supreme Court has held a "prosecutor must disclose all relevant information obtained by the police or others in the Attorney General's Office to the defense" and uphold its duty "to learn of any favorable evidence known to the others acting on the government's behalf in the case . . ., "[14] Gibson argues Phillips' drug tests formed the basis of the charges against him, and disclosure of her misconduct may have been the difference between conviction and acquittal. Gibson notes that eleven weeks before DFS tested the substances in his case, Phillips engaged in questionable evidence-handling that resulted in two Corrective Action Request Forms filed against her.[15] Gibson argues that, had the State disclosed Phillips' misconduct, Trial Counsel would not have stipulated to the chain of custody and admission of the drug reports into evidence. Gibson further argues that, had the State been forced to present the drug report during its case-in-chief, Gibson could have impeached Phillips and affected the jury's judgment.

         11. A Brady violation occurs when: "(1) evidence exists that is favorable to the accused, because it is either exculpatory or impeaching; (2) that evidence is suppressed by the State; and (3) its suppression prejudices the defendant."[16] The prejudice requirement is satisfied if the defendant can demonstrate that the i suppressed evidence "creates a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."[17]

         12. In State v. Miller, this Court held that non-disclosure of OMCE- related misconduct is not automatically a violation of Brady.[18] In Miller, the Court held that when the identity and weight of the drugs was undisputed and OCME lab reports were stipulated to and admitted into evidence, "the defendant has waived his or her right to test the chain of custody of that drug evidence."[19] When the testimony of OCME employees is not presented at trial, the assertion that defendants were "denied the opportunity to use the impeachment evidence on cross-examination holds little weight."[20] The Miller Court also emphasized the significant evidence of the defendants' guilt such that impeaching the OCME employees would do little to undermine confidence in their guilty verdicts.[21] In Miller, OCME employee misconduct occurred after the defendants' trials, while it occurred contemporaneously with the testing in Gibson's case. Importantly, however, none of the alleged or proven misconduct involved falsifying evidence, a fact found significant by both this Court and ...

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