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State v. Lowman

Superior Court of Delaware, Kent

October 24, 2018

STATE OF DELAWARE
v.
AARON O. LOWMAN, Defendant.

         RK13-07-0105-01, RK13-07-0107-01, RK13-07-0110-01, RK13-07-0111-01, RK13-07-0112-01, RK13-07-0113-01, RK13-07-0114-01, RK13-07-0115-01, RK14-10-0277-01, RK14-07-0278-01, RK14-10-0279-01

         Upon Defendant's 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.

          Aaron O. Lowman, Pro se.

          COMMISSIONER'S REPORT AND RECOMMENDATION

          Andrea M. Freud Commissioner

         The defendant, Aaron O. Lowman ("Lowman") was found guilty as charged, following a jury trial on October 22, 2014, of one count of Possession of a Firearm During the Commission of a Felony ("PFDCF"), 11 Del. C. § 1447 A; two counts of Possession of a Firearm by a Person Prohibited, 11 Del. C. § 1448(a)(9); one count of Aggressive Driving, 21 Del. C. § 4175 A; one count of Resisting Arrest, 11 Del. C. § 1257; one count of Disregarding a Police Officer's Signal, 21 Del. C. § 4103; one count of Driving While Suspended or Revoked, 21 Del. C. § 2756; two counts of Improper Lane Change, 21 Del. C. § 4122; one count of Speeding, 21 Del. C. § 4169; and one count of Failure to have his Lights on, 21 Del. C. § 4331. Prior to trial the State dismissed a number of additional driving offenses and several drug related offenses. On November 24, 2014, the State filed a motion to declare Lowman an habitual offender under 11 Del C. § 4214(b). The Court granted the motion on January 14, 2015 and sentenced Lowman to life incarceration without the award of good time.

         A timely Notice of Appeal was filed with the Delaware Supreme Court by Lowman's Trial Counsel. In the appeal the following claim was raised that the Superior Court erred in denying Lowman's motion for a mistrial after a witness for the State started to testify about a transaction in which Lowman was involved when he acquired a handgun in exchange for drugs. The Delaware Supreme Court found no merit in any of the claims and affirmed Lowman's conviction and sentence on August 28, 2015.[1]

         On October 16, 2015, Lowman filed a motion for appointment of counsel and a motion for postconviction relief pursuant to Superior Court Criminal Rule 61. He raised six grounds for relief including ineffective assistance of counsel. On October 27, 2015, the Court granted the motion for appointment of counsel, and on March 24, 2016, Brian J. Chapman ("Appointed Counsel") was appointed to represent Lowman. 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 on January 6, 2017, along with a memorandum in support of the motion, having concluded that the motion was wholly without merit and that no meritorious grounds for relief existed. Lowman was sent a copy of the motion to withdraw and given 30 days to file a response. Appointed Counsel's motion to withdraw was granted by the Court on April 21, 2017.[2]

         Next Lowman moved to amend his pro se motion for postconviction relief. Lowman's amended motion was filed on December 18, 2017. After several revised brief schedules the matter finally completed briefing and was sent for decision.

         FACTS

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

(3) On the evening of June 15, 2013, Delaware State Police Detective Matthew Long and Delaware Department of Probation and Parole officer David Angelo were driving in Smyrna, Delaware in an unmarked Chevrolet Impala. They spotted Lowman, whom they knew was wanted on outstanding criminal charges. Lowman was driving a rented beige Nissan Altima registered in North Carolina.
(4) Detective Long and Officer Angelo attempted to stop the Nissan. Officer Angelo got out of the police vehicle with his gun drawn and identified himself as a probation and parole officer. He addressed Lowman by name and told him to step out of the car. Instead of complying. Lowman sped away. Detective Long and Officer Angelo chased the Nissan with warning lights on at speeds exceeding 100 miles per hour. A camera in the police car recorded the high speed chase. Lowman managed to pull away, and the officers discontinued the chase.
(5) Long and Angelo came across the Nissan again later in the evening and resumed pursuit. Lowman managed once again to pull away from the police vehicle, but Long and Angelo ultimately found the Nissan on State Route 9, overturned on its roof.
(6) As Detective Long and Officer Angelo approached the Nissan, they saw Lowman break the glass out of the back window, crawl out of the vehicle, and attempt to run away. Detective Long used his taser to subdue Lowman and then put him in handcuffs.
(7) Lowman's girlfriend, Marshay Johnson, who was also charged in the matter, was inside the Nissan. The officers took Lowman from the scene to Christiana Hospital for medical treatment. After a tow truck arrived and turned the Nissan upright, Delaware State Police Officer David Hake, Jr. searched the vehicle and found a loaded handgun on the driver's floorboard and a package of .22 caliber ammunition underneath the dashboard above the gas petal.
(8) Nine days later, Detective Long interviewed Lowman at the James T. Vaughn Correctional Center. He read Lowman a Miranda warning and Lowman confirmed that he understood his rights. Detective Long attempted to record the interview but the quality of the recording turned out to be poor. The interview was difficult to hear on the recording and the recording was not introduced into evidence at Lowman's trial. Detective Long testified at Lowman's trial that in the course of the interview Lowman told Detective Long that the handgun and ammunition found in the Nissan belonged to him.
(9) The State called Detective Long as a witness at Lowman's trial. The following exchange took place between the prosecutor and Detective Long, regarding the interview with Lowman at the Vaughn Correctional Center.
Prosecutor: What did he say about the handgun? Detective Long: I asked him questions about the handgun. What Mr. Lowman advised to me is that he obtained the handgun from what he described as a fiend, or someone who commonly abuses drugs. What he explained to me was that he traded three grams of crack cocaine - Interrupting the testimony, defense counsel objected and moved for a mistrial. The prosecutor informed the court that the witness had been instructed not to bring up drugs during his testimony. Defense counsel argued that Detective Long's testimony was highly prejudicial to Lowman because it introduced evidence of an uncharged crime.
(10) The trial judge applied the four-factor test established by this Court in Pena v. State to evaluate whether the unsolicited comment from Detective Long was sufficiently prejudicial to merit a mistrial. After reviewing all of the factors, the court found the factors weighed against a mistrial. Citing Lowman's admission to the police that the handgun and ammunition discovered in the rental car belonged to him, the court concluded that the case was not a close one and thus Lowman was not likely prejudiced by Long's testimony. The court also believed that a curative jury instruction was sufficient to mitigate any prejudice. The court denied the motion for mistrial and instructed the jury as follows:
Earlier you may have heard the officer, who was on the stand, testify and provide testimony which indicated that the handgun was obtained through someone who commonly abuses drugs. And it explained to him that, perhaps, the drugs were traded for prohibited contraband. You are to ignore that statement. That has no bearing on this case. It is to be stricken from the record, and you are not to consider it at all in any determination you have in this case.[3]

         LOWMAN'S CONTENTIONS

         Next, Lowman filed a Motion for Postconviction Relief pursuant to Superior Court Rule 61. In his motion, he raises the following grounds for relief: Ground one: I.A.C.[4] due counsel's failure to object where the trial court denied motion for mistrial an abuse of discretion where the states (sic) investigating officer provided an unelicited (sic) response on direct examination implicating that the defendant was a drug dealer and/or committed an act of drug dealing to acquire gun.

Ground two: I.A.C. counsel failed to suppress incriminating statements where defendant invoked his right to counsel at the beginning of the recorded interview counsel failed to follow basic competent counsel rule suppress all statements.
Ground three: I.A.C. counsel failure to object to the Detective's created [illegible] alledged (sic) testimony of the Defendant's confession their (sic) was no foundation no tape and the Detective's testimony should have been excluded.
Ground four: I.A.C. counsel failed to compel Detective's testimony of Detective where Detective had statements of co-defendant Marshay Johnson who said the weapon was hers.
Ground five: I.A.C. Counsel failed to object to the Prosecution's misrepresentation of evidence where the state said their (sic) would be a statement played however it never was.
Ground six: I.A.C. Petitioner's Counsel failed to raise Petitioner's claims forcing him to wave (sic) his constitutional arguments.

         On February 14, 2017 Lowman filed a Memorandum of Law adding the following grounds:

Ground seven: Ineffective Assistance of Counsel. Trial Counsel failed to request a missing evidence jury instruction, commonly known as a "Deberry instruction" that would require the jury to presume that the missing notes were exculpatory.
Ground eight: Superior Court erred by not giving the jury a "missing evidence" instruction which has prejudice effect to Lowman trial. The Sixth Amendment provides that an individual accused of a crime has the right to a trial by an impartial jury.
Ground nine: Abuse of Discretion. Trial judge abused his discretion by denying a motion for mistrial following an unsolicited response by a state witness to the jury with prejudicial effect. The Sixth Amendment provides that an individual ...

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