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State v. Brown

Superior Court of Delaware, Kent

April 6, 2018

STATE OF DELAWARE
v.
ANSARA M. BROWN, Defendant.

          Submitted: March 22, 2018

          RK12-06-0541-01 DDeal Tier 4 (F) RK 12-09-0213-01 CCDW (F) RK12-09-0214-01 PDWDCF (F) RK12-09-0216-01 Consp 2nd (F) RK 12-09-0211-01 PossMarj(M)

          ORDER

          Jeffrev J Clark Judge.

         On this 6th day of April, 2018 upon consideration of Defendant Ansara Brown's ("Mr. Brown's") Motion for Postconviction Relief, the Commissioner's Report and Recommendation (the "Report"), Mr. Brown's appeal, and the record in this case, it appears that:

1. Mr. Brown was found guilty, following a jury trial on September 11, 2013, of one count of Drug Dealing Tier 4, 16 Del. C. § 4752(1); one count of Possession of Marijuana with Aggravating Factors, 16 Del. C. § 4764(1); one count of Tier 5 Possession, 16 Del. C. § 4752(3); one count of Carrying a Concealed Deadly Weapon, 11 Del. C. § 1442; one count of Possession of a Deadly Weapon During the Commission of a Felony, 11 Del. C. § 1447; one count of Conspiracy in the Second Degree, 11 Del. C. § 512; and one count of Criminal Solicitation in the Second Degree, 11 Del. C. § 502.
2. On October 17, 2013, the State filed a motion to declare Mr. Brown an habitual offender. The Court granted the motion on October 30, 2013 and sentenced him to life in prison on both the Drug Dealing and Tier 5 Possession of Cocaine charges. On the remaining charges, the Court sentenced Mr. Brown to a total of twenty-seven years unsuspended time.
3. Mr. Brown filed a timely Notice of Appeal to the Delaware Supreme Court. At oral argument, Mr. Brown's counsel raised the issue before the Supreme Court that one of the Office of Chief Medical Examiner's employees who had handled the evidence seized in his case had been indicted for improper conduct in evidence handling. The Supreme Court remanded the case permitting Mr. Brown to file a Motion for New Trial. On remand, the Superior Court denied the motion. After further appellate proceedings, the Delaware Supreme Court found no merit in any of Mr. Brown's claims and affirmed his conviction and sentence.
4. Mr. Brown then filed his initial postconviction motion on October 2, 2015 and several amended motions thereafter. His appointed counsel ultimately filed a motion to withdraw because he concluded that the motion was without merit and that no meritorious grounds for relief existed. The Court granted that motion on May 9, 2017. Mr. Brown then supplemented his Rule 61 motion and after several revised briefing schedules, the Commissioner considered his amended motion.
5. The Commissioner recommended in her Report that the Court deny Mr. Brown's Motion. The Court has reviewed the Report and considered Mr. Brown's appeal challenging the Report, which raises no new issues.

         NOW, THEREFORE, after a de novo review of the record in this action, review of the Report, and considering Mr. Brown's appeal challenging the Report;

         IT IS HEREBY ORDERED that the Commissioner's Report and Recommendation attached as Exhibit "A" is adopted by the Court in its entirety. Accordingly, Mr. Brown's Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 is DENIED.

         Exhibit A

         COMMISSIONER'S REPORT AND RECOMMENDATION

         Upon Defendant's Amended Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61

         Nicole S. Hartman, Esquire, Deputy Attorney General, Department of Justice, for the State of Delaware.

         Ansara M. Brown, Pro se.

          FREUD, Commissioner.

         The defendant, Ansara M. Brown ("Brown") was found guilty, following a jury trial on September 11, 2013, of one count of Drug Dealing Tier 4, 16 Del. C. § 4752(1); one count of Possession of Marijuana with Aggravating Factors, 16 Del. C. C. § 4764(1); one count of Tier 5 Possession, 16 Del. C. § 4752(3); one count of Carrying a Concealed Deadly Weapon, 11 Del. C. § 1442; one count of Possession of a Deadly Weapon During the Commission of a Felony, 11 Del. C. § 1447; one count of Conspiracy in the Second Degree, 11 Del. C. § 512 and one count of Criminal Solicitation in the Second Degree, 11 Del. C. § 502. Prior to trial the State severed one count of Possession of a Deadly Weapon By a Person Prohibited and entered nolleprosequis for one count of Possession of Marijuana and one count of Racketeering. On October 17, 2013 the State filed a motion to declare Brown an habitual offender. The Court granted the motion on October 30, 2013 and sentenced Brown to life in prison on both the Drug Dealing and Tier 5 Possession of Cocaine charges. On the remaining charges he was sentenced to a total of twenty-nine years and six months, suspended after serving twenty-seven years Level V, for probation.[1]

         A timely Notice of Appeal was filed with the Delaware Supreme Court by Brown's Trial Counsel. In the appeal the following claims were raised: (1) that the trial court abused its discretion in admitting the evidence obtained as a result of the traffic stop; (2) that the trial court abused its discretion in admitting into evidence telephone calls that had been intercepted by the court-ordered wiretap; and (3) that the trial court abused its discretion by admitting cocaine into evidence when the State failed to establish an adequate chain of custody.[2]

         At oral argument Brown's counsel informed the Supreme Court that one of the Office of Chief Medical Examiner's ("OCME") employees who had handled the evidence seized in Brown's case had been indicted of alleged improper practice. The Supreme Court remanded the case so that Brown could file a Motion for New Trial. On remand, the Superior Court denied the motion. Back at the Supreme Court the parties filed supplemental briefs concerning the denial of the new trial motion. The Delaware Supreme Court found no merit in any of the claims and affirmed Brown's conviction and sentence on June 17, 2015 stating in part:

We conclude that the Superior Court was within its discretion to deny Brown's motion for a new trial. Although sloppy evidence-handling practices and potentially worse behavior by OCME employees is disappointing and regrettable, there is no rational basis to infer that any sloppiness or other improprieties at OCME resulted in any injustice to Brown. Brown admits that he possessed cocaine in more than sufficient amount to justify his convictions, and there was overwhelming evidence of his guilt separate from the drugs seized from him. Accordingly, we affirm the Superior Court's denial of his motion for new trial.[3]

         Brown filed his initial postconviction motion on October 2, 2015 and several amended motions thereafter. Ultimately Christopher S. Koyste, Esquire ("Appointed Counsel") was appointed to represent Brown in his postconviction motion pursuant to Superior Court Criminal Rule 61. After an extremely thorough and conscientious review of the facts, the record and the law in the case, Appointed Counsel filed a motion to withdraw as counsel having concluded that the motion was wholly without merit and that no meritorious grounds for relief existed. Brown was sent a copy of the motion to withdraw and given 30 days to file a response.

         Next Brown moved to supplement his Rule 61 motion on April 13, 2017. Appointed Counsel's motion to withdraw was granted on May 9, 2017. After several revised brief schedules the matter finally completed briefing and was sent for decision.[4]

         FACTS

         Following are the facts as set forth by the Delaware Supreme Court:

Brown's arrest resulted from an extensive police investigation into an alleged drug trafficking syndicate run by Galen Brooks.FN 2 In addition to using undercover purchasers and confidential informants, the police obtained a warrant to wiretap Brooks' cell phones, and conducted video surveillance Brooks' house and physical surveillance of the entrance to his neighborhood. On May 31, 2012, officers listened to four calls, in which Brooks and an unknown man arranged for the man to buy cocaine from Brooks. In the last call, which took place at 5:35 . p.m., the man told Brooks that he would be at Brooks' house in approximately seven minutes to pick up the drugs. The officers listening to the telephone conversations, including Sergeant Lance Skinner of the Delaware State Police, relayed that information to the officers conducting surveillance. Sergeant Skinner then travelled to the area near Brooks' house to wait for the unknown man.
At the same time, Detective Jordan Miller of the Dover Police Department was conducting video surveillance of Brooks' house. Detective Miller watched another man, John Price, leave Brooks' home at 5:48 p.m.FN3 The police were familiar with Price's voice and telephone number from the investigation and believed that Price was not the unknown man from the four telephone calls. Three minutes after Price left, or roughly sixteen minutes after the fourth phone call, and unknown woman and a man later identified as Ansara Brown arrived at Brooks' home. Brooks came out to meet them and they went around the side of the house, out of view of the camera. Approximately five minutes later, Brown and the woman left Brooks' home. Brooks himself left a minute later, indicating to the police that he was no longer waiting for the unknown man from the telephone call to arrive. Detective Miller informed the other officers involved with the investigation.
Sergeant Skinner followed Brown's vehicle in his patrol car for two to three miles after it left Brooks' house. Sargent Skinner then stopped the vehicle and asked Brown to step outside on the pretext that there was a problem with his registration. Sergeant Skinner testified at Brown's trial that he recognized Brown's voice from the telephone calls earlier that day.FN4 when Brown stepped out of his vehicle, Sergeant Skinner arrested him. He then conducted a pat-down search of Brown and found what he described as two bags of cocaine contained in a pouch in brown's front pocket. One of the bags contained three smaller bags, for a total of five bags. Sergeant Skinner transported the drugs to the police station, where two other officers, sergeant Jeremiah Lloyd and Master Corporal Jeffrey Lavere, field-tested and weighed the contents and sealed the bags to transport to the Office of the Chief Medical Examiner. According to Sergeant Skinner's testimony at trial, three of the bags contained crack, and one of the bags contained powder cocaine.FN5 There was also a small amount of powder cocaine in the bag that contained the three smaller bags. The Delaware State Police Evidence Report indicated that the bags together contained approximately 1.2 grams of powder and 20 grams of crack cocaine.FN6
Sergeant Skinner searched Brown again at the police station and found a small bag of marijuana and a pair of brass knuckles in Brown's pocket. In a statement to the police, Brown admitted that he had an ounce of cocaine (approximately 28 grams) and that he intended to sell it. He gave the police his cell phone number, which matched the one captured on the wiretap. After he was released, Brown was also recorded on a wiretap speaking on the phone with Brooks, describing his arrest and the seizure of the drugs, and assuring Brooks that he would not 'fall short.'FN7
Ultimately, fourteen defendants were indicted for their involvement in the drug syndicate, including Brooks and Brown.FN8 Brown moved to sever his case from the other defendants, which the Superior Court granted. Brown also filed two pre-trial motions, one to suppress the evidence seized from him following his arrest and another to suppress the evidence from the wiretaps. The Superior Court denied both of those motions.
At Brown's trial, Sergeant Skinner, Sergeant Lloyd, and Master Corporal Lavere all testified about the cocaine seized from Brown. Despite the evidence report filed by Sergeant Lloyd and Master Corporal Lavere indicating that Sergeant Skinner had seized 1.2 grams of powder cocaine from Brown, Sargent Skinner testified that he had collected 8 grams of powder cocaine from Brown, in addition to the three bars of crack cocaine.FN9 Patricia Phillips, the OCME forensic examined responsible for testing the cocaine seized from Brown, also testified at trial. She stated that when she received the envelope containing the drugs seized from Brown, the seal was intact and there was no sign of tampering. Phillips' report indicated that there were five bags of cocaine, but in different quantities than the officers indicated: one bag of 'white powder' containing 7.03 grams; one bag of 'white powder' containing 0.67 grams; and three bags of an 'off white chunky substance' containing approximately 15.53 grams.FN10
During Phillips' testimony, Brown objected to the admission of the cocaine evidence. He contended that the discrepancies between the Police Evidence Report and the Medical Examiner's report suggested that there were concerns with the integrity of the evidence, and thus its admissibility.FN11 In particular, Brown emphasized that the police officers' account of which bags contained crack or powder did not match the Medical Examiner's report.FN12 Brown's attorney requested that she be able to question Phillips about the 'transport from Troop 3 to the medical examiner's office.FN13 The Superior Court denied that request, noting that 10 Del. C. § 4331 defines the chain of custody as the 'seizing officer, the packaging officer, and the medical examiner, ' all of whom had testified at Brown's trial, which Brown's attorney conceded.FN14
In responding to Brown's objection, Phillips clarified in a sidebar with the superior Court and both attorneys that her references to particular bags were not intended to correspond to the officers.FN15 The State pointed out that both reports described three bags of crack cocaine and one bag of powder cocaine, in addition to the outer bag, which contained a small amount of powder cocaine, although there were weight differences between the reports of powder and crack.FN16 Phillips also explained during the sidebar that 'sometimes ... powder ... clumps together and it appears to be a chunky substance when it is more powdery.... My description is that it's chunky. That's not a clinical or chemical differentiation. It is a description of how the evidence appears.FN17 She noted that because Delaware's drug laws do not differentiate between powder and crack cocaine, she did not specifically delineate the form of the cocaine beyond its appearance in her report.FN18 Phillips also explained that she did not weigh the drug packaging, which the State offered as an explanation for the discrepancy between the weight of the powder cocaine she testified to compared to Sergeant Skinner's testimony, even though the total amount of cocaine she reported (23.23 grams) was more than that reported by the police (21.2 grams). The Superior Court determined that the drug evidence was admissible, noting that 'I don't think there's any reasonable possibility that the drugs got mixed up with some other drugs that were not on [Brown's] person into those envelopes....'FN19
Following a three day trial, Brown was convicted by the jury of one count each of drug dealing at Tier 4, aggravated possession of a controlled substance, carrying a concealed deadly weapon, possession of a deadly weapon during the commission of a felony, conspiracy in the second degree, criminal solicitation in the second degree, and possession of marijuana. The Superior Court sentenced Brown as a habitual offender to two life sentences for the charges of drug dealing and aggravated possession of a controlled substance. Brown was sentenced to twenty-nine years and six months' imprisonment, suspended after 27 years, on the remaining charges.
FN2 See State v. Brooks, 2013 WL 4051049 (Del. Super. July 30, 2013); see also Ayers v. State, 97 A.3d 1037, 1038 (Del. 2014.)
FN3 The record does not indicate the time that price arrived at Brooks' house.
FN4 App. To Opening Br. At 66 (Trial Test. Of Skinner, Sept. 9, 2013).
FN5 Id. At 74.
FN6 Opening Br., Ex. F (Delaware State Police Evidence Report).
FN7 State v. Brown, ID # 1205025968A, at 5 *Del. Super. Dec. 18, 2014) (letter ...

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