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State v. Ingram

Superior Court of Delaware

June 21, 2018

STATE OF DELAWARE
v.
ORLANDO INGRAM, Defendant.

          In and for Kent County RK12-12-0300-01, PFBPP PABPP (F)

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

          Marie O. Graham, Esquire, Deputy Attorney General, Department of Justice, for the State of Delaware.

          Natalie S. Woloshin, Esquire, Woloshin, Lynch & Associates, P.A., Wilmington, Delaware for Defendant.

          COMMISSIONER'S REPORT AND RECOMMENDATION

          Andrea M. Freud, Commissioner.

         The defendant, Orlando Ingram[1] (Ingram), was found guilty following a jury trial on May 6, 2014 of one count of Possession of a Firearm by a Person Prohibited ("PFBPP"), 11 Del. C. § 1448. On August 13, 2014, at sentencing Ingram was declared a habitual offender pursuant to 11 Del. C. § 4214(a) and received a total sentence of twenty-five years Level V incarceration (five of which were minimum mandatory) followed by one year probation.

         A timely Notice of Appeal to the Delaware Supreme Court was filed. Ingram's counsel filed a brief and motion to withdraw pursuant to Supreme Court Rule 26(c). In the motion to withdraw, appellate counsel represented that he conducted a conscientious review of the record and concluded that no meritorious issues existed. By letter, counsel informed Ingram of the provisions of Rule 26(c) and attached a copy of the motion to withdraw and accompanying brief. Ingram was informed of his right to supplement his attorney's presentation. Ingram, pro se, raised three issues for appeal for the Supreme Court to consider, which the Supreme Court classified as follows:

(7) In his first point on appeal, Ingram claims that his 2014 conviction and sentencing for PFBPP subjected him to double jeopardy because his 2013 conviction and sentencing for Possession of a Firearm During the Commission of a Felony ("PFDCF").'5 Ingram's claim is without merit.
***
(10) In his second point on appeal, Ingram contends that there was insufficient evidence for the jury to find him guilty of PFBPP. Ingram made the same claim in a motion for judgment of acquittal, which was denied at trial. When denying the motion, the Superior Court found that:
The evidence that's been submitted by the State indicates that: Upon entry into a residence where Mr. Ingram was occupying, he was subdued by officers involved here. And there has been evidence to indicate that he made multiple attempts to reach for an item or object under a couch that's been later identified as a handgun.'9
***
(13) Having reviewed the trial court record, we conclude that the evidence was sufficient to support the jury's finding that Ingram was guilty of PFBPP. Two police officers testified that, when struggling with them in the living room of his sister's apartment on September 27, Ingram made repeated attempts to reach under the couch in an area where the police later discovered a loaded handgun.
(14) In his third point on appeal, Ingram contends that the evidence seized when he was arrested on September 27 should have been suppressed because his sister did not consent to the search of her apartment. Ingram concedes that he unsuccessfully raised the same claim during his 2013 trial and in his appeal from those convictions.[2]
FN5 The Double Jeopardy Clauses of the United States and Delaware Constitutions protect a criminal defendant against multiple punishments or successive prosecutions for the same offense. U.S. Const, amend. V; Del. Const. Art. 1, § 8. See Evans v. State, 445 A.2. 932, 933 (Del. 1982).
FN9 Trial Tr. At B-59 (May 6, 2014).

         The Supreme Court granted the State's motion to affirm as to all of Ingram's claims.[3] Next, pro se, Ingram filed a Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 and a Motion for Appointment of Counsel which the Court granted. Subsequently, Natalie S. Woloshin, Esquire ("Appointed Counsel") was appointed to represent Ingram in his motion. She filed an amended motion for Postconviction relief alleging ineffective assistance of counsel on April 17, 2017 and requested an evidentiary hearing. My review of the facts and the law lead me to conclude that an evidentiary hearing is unnecessary in this case. Ingram's Trial Counsel and the State responded to the amended motion for postconviction relief and Appointed Counsel did not file a response.

         FACTS

         The following is a summary of the facts as noted by the Delaware Supreme Court in its opinion:

(1) On September 27, 2012, Dover police arrested the appellant, Orlando Ingram, in the living room of his sister's apartment in Dover, Delaware. The police had a warrant for Ingram's arrest because he was a suspect in the September 4 robbery of a Family dollar store in Dover. Ingram put up a fight when the police entered the apartment to arrest him. After Ingram was subdued and taken into custody, Ingram's sister gave the police written consent to search the apartment. During the search, the police discovered a loaded handgun under the living room couch.
(2) On December 3, 2012, Ingram was indicted on multiple offenses in connection with various robberies and attempted robberies in the Dover area in August and September 2012, including offenses arising from the September 4 robbery and Ingram's September 27 arrest. After a jury trial in November 2013, Ingram was convicted as charged of the September 4 robbery and September 27 arrest-related offenses, except for two counts of Possession of a Firearm by a Person Prohibited ("PFBPP"), which were severed before trial. By order dated December 30, 2014, this Court affirmed Ingram's November 2013 convictions.FN1
(3)On May 5, 2014, Ingram went to trial on the two counts of PFBPP. One count, which was charged in connection with Ingram's September 27 arrest, was tried before a jury. The other count, which was charged in connection with the September 4 robbery, was tried before the trial judge but then nolle prossed. FN2
(4) After a two-day trial, the jury found Ingram guilty of PFBPP. On August 13, 2014, the Superior Court declared Ingram a habitual offender and sentenced him to twenty-five years mandatory at Level V incarceration followed by one year at Level III probation. This is Ingram's direct appeal.[4]
FN1 See Ingram v. State, 2014 WL 7465977 (Del. Dec. 30, 2014)(affirming the Superior Court's judgment of convictions in State v. Ingram, Cr. ID No. 1209003136C)). The Court has taken judicial notice of the proceedings.
FN2 See docket at 5, State v. Ingram, Cr. ID No. 1209003136E (May 7, 2014). The Court has taken judicial notice of the proceedings.

         The following is the relevant direct testimony from Ingram's trial of Detective Christopher Bumgarner the first police officer to enter the Ingram's sister's apartment:

Q: When you made entry can you describe what happened?
A. Yes. When I made entry - it was an odd apartment in that -the front door opens, and it opens into a hallway. The hallway can go right or left. To the left was a kitchen, to the right was a living room. But when the door opens, it's blocked. The only way to go right, because of the swinging door, is to actually close the door behind you and then go right into the living room.
We knew that the subject to be arrested was inside the living room. So as I entered, I actually had to close the door, leaving the rest of the team of police officers behind me, and go right into the living room by myself.
Q. What are you wearing when you make entry?
A. I was wearing - it was black tactical gear. So it's black BDU pants; a black tactical vest that has, in white lettering across it, "police" on the front and "police" on the back I had my service pistol, and what we call a gun belt. I also had a radio. And due to the nature of the operation, I also had a long gun, which is a rifle, a tactical rifle.
Q. Once you made entry, describe what you observed.
A. As soon as I made entry, I had to close that door behind me. When I closed the door behind me, the defendant in this matter, Orlando Ingram, was standing there; and that was the individual that we had the arrest warrant for.
He began to turn towards me, saw me, and yelled. When he did that, my weapon was up. I yelled "police." He kind of let out kind of like a yell/scream-type thing, and his hands went for the front of my barrel of my rifle. When he did that, I instinctively pushed against him driving the barrel into him knocking him over.
At that point, he was then on the ground and on his back looking up at me as I was giving him commands: show me your hands; show me our hands. He started using his feet to scoot his back across the floor towards the couch that was behind him. And as he was doing this, he was reaching his right hand to try to get under that couch.
When I recognized that he was trying to get his right hand under the couch, I became concerned for my safety that he was possibly grabbing a weapon of some sort. I kicked him. I ordered him to show me his hands. He brought his hands back down and, then, started diving his hands underneath the couch again.
I kicked him again; the same thing: show me your hands. He would look at me and dive his hands underneath the couch. He was actually almost rolling onto his stomach to get underneath the couch, and his hand was disappearing under the couch. I would say this happened about three times, I believe, before the rest of the officers were able to get in the house. And to my memory, it seems like just multiple officers ended up in that house at the same time. And they dog piled - all of them jumped onto him to arrest him.
I couldn't get on the ground with him because I had this rifle, it just isn't practical. I'm trying to give him commands. They all just onto him and he, again, dives his hand underneath that couch and they start fighting with him to get his hands back.
At this point, there are multiple officers on him trying to get him into custody and trying to secure his hands that kept going underneath this couch.
I then realized that there was nobody watching us and didn't know if there was somebody else in the house. And I turned around and started looking down the hall where somebody could potentially come. Another officer teamed up with me and we started clearing the house, checking the house, making sure there was nobody else that was a threat to the house. By the time I came back, that group of officers had him in cuffs and were taking him outside.
Q. Do you see that individual in the courtroom today?
A. Yes, I do,
A. He is the defendant in the blue and black checkered shirt seated next to counsel.
Q. Now, once you switched your attention to clear the rest of the building, and come back to the living room, did you have occasion to be involved in checking for any evidence or anything in that residence?
A. Yes. When I came back to the living room, they had him in handcuffs, they were getting him up. There were multiple officers in there. Officer Willson said -
Q. Okay. Without you saying what Officer Willson said -we'll have him testify - if you can, just explain what you did in response to whatever he told you.
A. An officer made me aware.
Based on what I was made aware of, I looked under the couch to where the defendant had been reaching his hand underneath the couch in our confrontation. There was a handgun, a revolver, underneath the couch.[5]

         The relevant cross examination testimony of Detective Bumgarner is as follows:

Q. Now, you testified pretty clearly. My client was on his back the entire time that you were interacting with him?
A. On his back. At one point, he started to roll over as he was reaching; but, for the majority, he was on his back.
Q. He was on his back. In fact, that's what caused you concern, correct?
In your training, you prefer to have individuals who you are taking into custody to have them on their stomach, correct?
A. What caused me concern was him reaching his hands underneath the couch which could not be explained at that point, and I couldn't see his hands. One of the things that we teach in officer safety is visualization of the hands because if somebody is going to hurt you it has to be with their hands, most likely.
Q. You would agree that one of the concerns that you have is that you want someone you are taking into custody on their stomach so that you can better control their arms? For instance, if you are going to take someone into custody, you can place their arms behind their back, correct?
A. In general. But in this circumstance, because the hands were the first priority, that was my first priority.
Q. Now, my client remained on his back up to and including the time when other officers engaged him, correct?
A. I believe so.
Q. When your focus was somewhere else; you were focused on clearing the rest of the residence?
A. Yes. I remember, as they were basically jumping on him, he made one last kind of turn to get under the couch; but I don't think he ever fully got to his stomach. After that, I turned my focus on the rest of the house; so I couldn't speak to anything else beyond that.
Q. So as far as you are concerned, he's on his back and reaching with his right hand?
A. With his right hand, yes.
Q. Now, he never grasped that gun; correct?
A. I don't know if underneath the couch he touch it or not. I can't -1 didn't see his hands, so I can't speak to that.
Q. You certainly never saw him grab that gun?
A. I never saw the firearm until afterwards.[6]

         The direct testimony of Officer John M. Willson of the Dover Police Department is as follows:

Q. Can you describe what was taking place when you first went in there?
A. Mr. Ingram was on the ground; his head was kind of toward like the television. There is a couch to the left of the television. His left hand was reaching underneath the couch. At that point, I grabbed his left arm and was trying to force it behind his back.
Q. At that time - how many other officers were there at that point?
A. I would believe there was probably seven or eight.
Q. What, if anything, did you see Officer Bumgarner doing?
A. Officer Bumgarner continued to clear the rest of the house to make sure that we could safely take him into custody and that there was no one else in the house.
Q. How were the other officers dressed?
A. We all had on police tactical vests, black vests, which says "police" across the ...

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