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State v. Palmer

Superior Court of Delaware

January 31, 2019

STATE OF DELAWARE, Plaintiff,
v.
ISAIAH PALMER, Defendant.

          Submitted: November 5, 2018

          John S. Taylor, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Eugene J. Maurer, Jr., Esquire, 1201-A King Street, Wilmington, Delaware 19801, Attorney for Defendant Isaiah Palmer.

          COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED

          LYNNE M. PARKER COMMISSIONER.

         This 31st day of January, 2019, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND AND PROCEDURAL HISTORY

         1. On December 21, 2015, Defendant Isaiah Palmer was indicted on charges of two counts of Possession of a Firearm During the Commission of a Felony ("PFDCF"), one count of Possession of a Firearm by a Person Prohibited ("PFBPP"), one count of Possession of Ammunition by a Person Prohibited ("PABPP"), Drug Dealing in a Tier 4 quantity and Possession of a Controlled Substance in a Tier 5 quantity.

         2. On March l l, 2016, Palmer filed a Motion to Suppress Evidence. The court denied the motion.[1]

         3. After the denial of the suppression motion, the case proceeded to trial. Prior to jury selection, Palmer requested and was granted the severance of the PFBPP and PABPP charges from the remainder of the case. The "A" case went to a jury and the "B" case (PFBPP and PABPP) was a simultaneous bench trial.

         4. The jury was selected on July 6, 2016. Following a two-day trial, the jury found Palmer guilty of Possession of a Controlled Substance in a Tier 5 quantity and PFDCF. The jury found Palmer not guilty of Drug Dealing in a Tier 4 quantity and the related PFDCF charge. The Superior Court found Palmer guilty of the "B" counts of PFBPP and PABPP.

         5. Prior to sentencing the State moved to declare Palmer a habitual offender.[2]Following a pre-sentence investigation, on September 16, 2016, the Superior Court declared Palmer a habitual offender pursuant to 11 Del.C. § 4214(c).

         6. The Superior Court sentenced Palmer to a total unsuspended sentence of 42 years at Level V incarceration followed by probation.

         7. Palmer filed a direct appeal to the Delaware Supreme Court. On July 7, 2017, the Delaware Supreme Court determined that the appeal was without merit, upheld the denial of his suppression motion, and affirmed the judgment of the Superior Court.[3]

         FACTS

         8. During the second week of October 2015, a confidential informant informed officers from the Wilmington Police Department that a residence located at 311 West 29th Street in Wilmington, Delaware was used as a "stash house" for weapons.[4] Based on the tip, the officers conducted surveillance of the residence and observed a high frequency of activity coming from the residence with multiple subjects responding and entering for short periods of time and then leaving.[5] To the officers, this observation was consistent with the allegation that the residence was a "stash house" for weapons and/or illegal drugs.[6]

         9. In November of 2015, the officers received another tip from another confidential informant that a black male named Isaiah Palmer lived at 311 West 29th Street and that his residence was being used as a "stash house" for other individuals' weapons, and that firearms were being stored in an exterior shed.[7]

         10. After obtaining a search warrant, on November 12, 2015, the Wilmington Police Department executed the warrant. When the police arrived, there were four individuals, apparently relatives of Palmer, in the residence, but he was not there. Palmer arrived later during the execution of the search warrant.[8]

         11. In a cubbyhole near the basement steps was a bag labeled "1-95 Enter" and within it were nine bundles of heroin containing .117 grams. Additional bags of heroin were found outside of the residence in recycling bins. Those bags were stamped with the phrase "Nike" and weighed 20.91 grams.[9] In total 2, 581 bags of heroin was seized. In addition, five separate types of ammunition were found in the rear shed. Palmer, along with the other family members, indicated that his bedroom was in the basement.[10] Inside the basement bedroom, police observed a bed, men's clothing and a dresser along with a box sitting on a table several feet past the foot of the bed. On top of the box, police found a loaded Taurus PT .45 caliber handgun with eight rounds of ammunition.[11]

         PALMER'S PENDING RULE 61 MOTION

         12. On July 3, 2018, Palmer, with the assistance of counsel, filed the pending Rule 61 motion. In the subject motion, Palmer raises one claim. Palmer claims that trial counsel's failure to call Palmer's cousin Samuel Palmer as a witness at trial was ineffective and resulted in prejudice to Palmer.

         13. Before making a recommendation, the record was enlarged and Palmer's trial counsel submitted an Affidavit responding to Palmer's claim, the State submitted a response, and Palmer was afforded an opportunity to submit a reply thereto.[12]

         14. In order to prevail on an ineffective assistance of counsel claim, Palmer must meet the two-pronged Strickland test by showing that: (1) counsel performed at a level "below an objective standard of reasonableness" and that, (2) the deficient performance prejudiced the defense.[13]

         The first prong requires the defendant to show by a preponderance of the evidence that defense counsel was not reasonably competent, while the second prong requires him to show that there is a reasonable probability that, but for defense counsel's unprofessional errors, the outcome of the proceedings would have been different.[14]

         15. Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice.[15] Although not insurmountable, the Strickland standard is highly demanding and leads to a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance.[16] Moreover, there is a strong presumption that defense counsel's conduct constituted sound trial strategy.[17]

         16. In considering post-trial attacks on counsel, Strickland cautions that trial counsel's performance should be reviewed from the defense counsel's perspective at the time decisions were being made.[18] It is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.[19] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting efforts of hindsight. Second guessing or "Monday morning quarterbacking" should be avoided.[20]

         17. It is against this backdrop that Palmer's claim of ineffective assistance of counsel is considered.

         18. Trial counsel explained that his trial strategy was to establish reasonable doubt that Isaiah Palmer had knowing possession of the items seized.[21] To that end, trial counsel presented numerous photographs through an investigator that tended to demonstrate Palmer's lack of proximity to the items. Moreover, counsel established through police witnesses that the items were found in easily accessible areas in a very high crime and high drug dealing part of town.[22]

         19. Trial counsel explained that his decision not to call Samuel Palmer as a witness at trial was a tactical decision.[23] Trial counsel explained that Samuel Palmer was with Isaiah Palmer on the night the search warrant was executed. Samuel was also charged with drug and weapons offenses, although his charges were dismissed a couple weeks later. Samuel went to the police station the night of the search warrant and gave a statement essentially stating all of the items seized were his and that no one else knew about them.[24]

         20. However, there were significant problems with Samuel's statement to the police. Samuel did not accurately describe the items seized. He described the firearm correctly, but said it was "by the bed," which is not where it was found.[25]Samuel was not accurate about the heroin. He said there were only "probably over 100 bags" of heroin in the trashcan, when in fact there were over 2, 400 bags of heroin in that trashcan.[26]

         21. Samuel could not describe how the heroin was packaged. He was correct about the "Nike" stamp on the heroin in the trashcan but did not know anything about the other heroin seized from ...


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