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State v. Ducette

Superior Court of Delaware

February 11, 2019


          Submitted: February 4, 2019

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

          Tyreek Ducette, Delaware, pro se.


          The Honorable Katharine L. Maye

         This 11th day of February, 2019, upon consideration of Defendant's Motion for Postconviction Relief and the record in this matter, the following is my Report and Recommendation.


         On October 10, 2016, Tyreek Ducette ("Defendant") was indicted and charged with Possession of a Firearm by a Person Prohibited and Possession of Ammunition by a Person Prohibited. The charges stem from a search of Defendant's home on August 23, 2016. At the time, an investigation was underway with respect to an alleged burglary. Defendant's fingerprint was found on a cash register. According to the affidavit, the police were looking for receipts related to the burglary. Law enforcement responded to Defendant's home and placed him into custody for an outstanding warrant for burglary. Law enforcement also served a' search warrant and while searching the room in which Defendant was placed into custody, located a .25 caliber Hawes Handgun and six rounds of ammunition. The investigator also located Defendant's identification card near the firearm, and after Defendant was mirandized, he admitted the firearm was purchased by him out of concerns for his safety. Defendant had previously been convicted of Carrying a Concealed Deadly Weapon and he was a person prohibited from possessing a firearm and ammunition. Defendant was then charged with the instant offenses.[1]Defendant waived his right to a jury trial and a bench trial took place on May 7, 2017. At the conclusion of the trial, Defendant was found guilty of both charges. Defendant was sentenced on June 16, 2017 to five years at Level V plus six months at Level IV, with some probation to follow.

         On June 11, 2018, Defendant filed his first Motion for Postconviction Relief.[2]Defendant initially presented three claims: (1) trial counsel was ineffective because he did not "state all the facts that he was supposed to and left out important facts that could help;" (2) the search and seizure was illegal because he was charged with an offense unrelated to the search warrant; and (3) the officers did not have probable cause for the search of his home. On August 31, 2018, Defendant filed a Letter with additional "merits" in support of his motion.[3] Through his Letter, Defendant expands upon his claims. First, Defendant argues that trial counsel was ineffective because he did not argue that the gun was unrelated to the alleged burglary and therefore should not have been seized, resulting in the charges at issue. Next, it appears Defendant is attempting to argue that trial counsel was ineffective for failing to move to suppress the search because his fingerprint on the cash register was insufficient to support probable cause for a search of his home.

         On October 11, 2018, trial counsel submitted an Affidavit responding to the allegations.[4] On December 5, 2018, the State filed a Response to Defendant's Motion for Postconviction Relief.[5] Defendant was also given an opportunity to file a reply in support of his motion but did not do so by the date set.


         Before considering the merits of the claims, the Court must first determine whether there are any procedural bars to the motion.[6] Defendant's first motion, having been filed within one year of the date of sentencing, is timely.[7] Pursuant to Super. Ct. Crim. R. 61(i)(3) and (4) though, any ground for relief that was not previously raised is deemed waived, and any claims that were formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, are thereafter barred. To the extent Defendant is now attempting to directly challenge the search warrant, any such claims are barred for his failure to raise them previously. Ineffective assistance of counsel claims though cannot be raised at any earlier stage in the proceedings and are properly presented by way of a motion for Postconviction Relief.[8]

         In order to prevail on an ineffective assistance of counsel claim, a defendant must show that his counsel's representation fell below an objective standard of reasonableness and the deficiencies in counsel's representation caused the defendant actual prejudice.[9] When reviewing such a claim, the Court must analyze counsel's conduct based upon all of the facts of the case and avoid peering through the lens of hindsight.[10] Defendant must overcome a strong presumption that counsel's conduct was reasonably professional under the circumstances.[11] Defendant must also show that any alleged errors were so serious that his counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.[12] "A defense attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities."[13] Great weight and deference are given to tactical decisions by the trial attorney and counsel cannot be deemed ineffective for failing to pursue motions that lack merit.[14] Further, in order to prevail on an ineffective assistance of counsel claim, a defendant must show that but for the errors, there is a reasonable probability that the outcome of the proceedings would have been different.[15] Mere allegations of ineffectiveness or conclusory statements will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice.[16]

         According to trial counsel's Affidavit, he reviewed the police reports and search warrant and determined that the warrant was valid and supported by probable cause. Trial counsel saw no grounds to support a suppression motion and decided that highlighting the basis for the search at trial would have been against Defendant's interests. The State responds in a similar vein. The State concurs with trial counsel's analysis and adds that the dresser was lawfully searched for receipts, and upon finding the firearm, the evidence was properly seized.

         Probable cause for the issuance of a search warrant may be found if the application sets forth facts that are sufficient for a neutral magistrate to conclude that a crime has been committed, and the property sought to be seized can be found in a particular place.[17] The magistrate may consider the totality of the circumstances to decide whether there is a fair probability that evidence of a crime will be found in a particular place.[18] This Court provides great deference to the magistrate's determination but will ensure that there was a substantial basis for a finding that probable cause existed.[19] Here, the search warrant included the fact that Defendant's fingerprint was found on the cash register at the scene of a recent crime. The warrant permitted the officers to search Defendant's home for evidence of the crime, including receipts from the ...

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