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,
Defendant's Motion for Postconviction Relief Pursuant to
Superior Court Criminal Rule 61
S. Hartman, Esquire, Deputy Attorney General, Department of
Justice, for the State of Delaware.
O. Lowman, Pro se.
COMMISSIONER'S REPORT AND RECOMMENDATION
M. Freud Commissioner
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.
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.
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.
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
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
(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
(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.
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. 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
Ground six: I.A.C. Petitioner's Counsel failed to raise
Petitioner's claims forcing him to wave (sic) his
February 14, 2017 Lowman filed a Memorandum of Law adding the
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
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