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State v. Lloyd

Superior Court of Delaware

May 20, 2019


          Submitted: April 4, 2019

          Mark Denney, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.

          Julianne E. Murray, Esquire, Murray, Phillips & Gay, Attorney for Andrew Lloyd.



         This 20th day of May, 2019, upon consideration of Defendant's Motion for Postconviction Relief, the following is my Report and Recommendation:


         In January of 2014, the Wilmington Police Department and Federal Bureau of Investigation began investigating Andrew Lloyd ("Defendant") with respect to suspected illegal dealing of heroin.[1] Independently, the Delaware State Police and U.S. Drug Enforcement Administration ("DEA") were also investigating Defendant for suspicious activities. When law enforcements' paths crossed, they agreed to work jointly to advance their consistent interests.

         During the course of the investigation, law enforcement came to understand that Defendant was the leader of a large-scale drug operation. It was also believed that he was moving an average of 1, 000-1, 600 bundles of heroin per week. Defendant primarily used others to store, package and distribute heroin for him and they used false names to hide the identity of their associates and the location of homes.

         The New Castle County Grand Jury eventually issued a final 163-count indictment that involved over forty (40) co-defendants and specifically charged Defendant with numerous felony offenses.

         On November 26, 2014, Peter Veith, Esquire ("Trial Counsel") was appointed to represent Defendant. In 2015, Defendant sent several letters to the Court advocating for suppression of certain wiretap evidence.[2] Pursuant to Superior Court Criminal Rule 47, the trial judge forwarded the letters to Trial Counsel.[3] In doing so, the trial judge also addressed several cases Defendant believed supported his position. The October 6, 2015 letter (hereinafter the "2015 Letter") states in part:

As a courtesy and to help you with your discussion, attached are copies of the trial and appellate courts' decisions in U.S. v. Yanes.[4] Defendant highlights a seemingly favorable snippet from the trial court's decision in Yanes concerning the warrantless, post-arrest search of a bag. Of course, Yanes has nothing to do with collecting evidence during an investigation, much less a wiretap, which is what this case concerns. While an arrest, like the arrests in Yanes, has to be supported by probable cause to believe a crime has been committed, [5] a wiretap is issued on probable cause to believe, among other justifications, that a crime is about to be committed.[6] In other words, a wiretap only needs reason to believe a crime is being planned.
Perhaps you can explain to your client why Yanes is not helpful to him. You might also explain the significance of the police surveillance here. If he will not take your word for it, let me know. But, I expect you to reason with your client first.
Meanwhile, it does not appear that your client realizes how serious his predicament is and how it gets worse with each co-defendant's guilty plea. As a reality check, I will ask the State to present its current case in a nutshell at the final case review, with emphasis on what is left if the wiretap, somehow, were suppressed. My understanding is that the State's position is qualitatively different now, compared to when your client was arrested.[7]

         In the meantime, due to safety concerns with witnesses, Defendant was housed at Sussex Correctional Institution, approximately a 2-hour drive from New Castle County where Trial Counsel was located. Trial Counsel filed a Motion to Transfer Defendant because although he had made in person visits and conducted videoconferencing, he needed Defendant to be housed locally during trial to avoid the delays from transport and to allow more time for preparation of the case.

         On October 7, 2015, the Court held a Final Case Review hearing.[8] The trial judge went through great pains to ensure Defendant understood the pending charges, the State's evidence and the potential penalties if convicted. The State summarized its evidence (separate and apart from the wiretap) as including: (1) the expected testimony of numerous co-defendants who would acknowledge the racketeering enterprise with Defendant or pled to drug conspiracy with Defendant; (2) affirmative statements that point with specificity to the history and methodology of Defendant's drug trafficking operation; (3) testimony that Defendant directed shootings, heroin trades, and trafficking from Philadelphia to Wilmington; (4) police officers testifying to observing drug deals with Defendant over time; and (5) video surveillance of illegal activity.[9]

         On that same date, Defendant rejected a plea offer. Through that offer, the State recognized that Defendant faced a minimum sentence of 10 years of Level V incarceration, and the State agreed not to seek more than 25 years at the time of sentencing.

         On October 20, 2015, the case proceeded to an eight-day joint trial for Defendant and a co-defendant. The State presented over fifty (50) witnesses including the testimony of seventeen (17) co-defendants. As part of its case, the State also introduced over one-hundred and seventy (170) pieces of evidence, including hours of recorded wiretap phone calls. The State sought to prove that Defendant was the head of a criminal enterprise that involved drug dealing and violence. Defendant was convicted of all charges. Defendant filed an appeal and his conviction was affirmed.[10]

         On February 21, 2017, Defendant filed a Motion for Postconviction Relief. Counsel was appointed and given leave to amend. An Amended Motion for Postconviction Relief was filed (the "Motion"), presenting two grounds for relief: (1) Trial Counsel was ineffective because he failed to substantively communicate with Defendant prior to trial; and (2) Trial Counsel was ineffective because he failed to move to suppress the wiretap evidence.[11] Trial Counsel submitted an Affidavit and attests that he regularly communicated with Defendant to discuss his case, and because he believed a motion to suppress lacked merit, he would not file a frivolous motion.[12] The State submitted a Response.[13] The State believes Trial Counsel "put forth a strong defense despite overwhelming evidence" and if a motion to suppress had been filed, it would have failed. Defendant submitted a Reply Brief[14] creating a factual dispute regarding the extent of communications and again attacking the admissibility of the wiretap evidence. An evidentiary hearing was held on April 4, 2019 (the "Hearing").[15] After having considered the entire record in this matter, the briefing from the parties, and the evidentiary record, [16]1 recommend that the Motion be denied.


         Before considering the merits of the claims, the Court must first determine whether there are any procedural bars to the Motion.[17] This is Defendant's first motion for post-conviction relief and it was timely filed.[18] Pursuant to Super. Ct. Crim. R. 6l(i)(3) and (4), 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. However, ineffective assistance of counsel claims cannot be raised at any earlier stage in the proceedings and are properly presented by way of a motion for postconviction relief.[19]

         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.[20] The court must be persuaded that the alleged errors were so serious that his counsel was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment.[21] 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.[22] The test is not whether the Defendant can demonstrate that the error had some "conceivable effect" on the outcome but rather whether the error undermined the reliability of the result of the proceeding.[23] Defendant must overcome a strong presumption that counsel's conduct was reasonably professional under the circumstances.[24] Mere allegations of ineffectiveness or conclusory statements will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice.[25]


         I. Defendant's First Claim for Relief Should be Denied

         Defendant first argues that his constitutional rights were violated because Trial Counsel failed to substantively communicate with him prior to the trial. At the Hearing, this was flushed out more and although there is a sufficient record of letters, phone calls, video conversations, and in person visits, Defendant claims Trial Counsel did not apprise him of certain significant evidence to enable him to make a knowing and intelligent decision to plea or go to trial.

         Defendant's complaints can be summarized in three categories: (i) a belief that the wire-tap evidence should have been suppressed; (ii) his lack of knowledge of the witness statements and testimony that would be elicited at trial; and (iii) his contention that he would have accepted a more favorable plea if he had been better informed. For the reasons set forth in Section II below, I do not believe Trial Counsel erred in failing to move to suppress the wire-tap evidence. The other two complaints will now be taken in turn.

         A. Trial Counsel Substantively Communicated with Defendant

         A review of the record, as well as the testimony and exhibits presented at the Hearing demonstrates that Trial Counsel was first introduced to Defendant in November of 2014. From the date of appointment until trial commenced, the record reflects approximately ten (10) in-person meetings, telephone conferences or video conferences.[26] Defendant acknowledges that Trial Counsel sent him eleven (11) letters prior to trial, but claims the content was brief or non-substantive. Defendant also puts great emphasis on the twenty-one (21) letters that he wrote to Trial Counsel that may or may not have received full attention.

         I disagree with Defendant's interpretation of the exchange of information. The letters demonstrate efforts by Trial Counsel to provide Defendant with copies of the re-indictment, wiretap intercepts from October 10, 2014 through October 24, 2014, two separate phone wiretap intercepts from August 29, 2014 to November 18, 2014 and October 21, 2014 to November 24, 2014, case law regarding jury instructions, Defendant's transcribed statement, multiple plea offers, DEA reports, the State's supplemental discovery including transcripts from co-defendant suppression hearings, and jury instructions. Trial Counsel also engaged Defendant in discussions relating to the seriousness of the felony drug offenses, the significant minimum/mandatory time, possible defenses, potential defense witnesses, plea offers and possible sentences, the assistance of a private investigator, the reindictment with an explanation of charges, and the relevancy of the wiretap intercepts.[27]

         Effective representation by trial counsel requires "adequate investigation and pre-trial preparation."[28] Trial Counsel was well versed in the facts and legal issues surrounding Defendant's case.[29] And, despite Defendant's accusations, Trial Counsel was far from idle. The time records reflect Trial Counsel expended more than 400 hours reviewing potential evidence, plea offers and legal issues. Trial Counsel made several attempts to convince Defendant that the evidence was weighted against him, and what the co-defendants were saying in cooperating with the State.[30] For example, in September of 2015, Trial Counsel forwarded a copy of Defendant's transcribed statement and advised:

While you do not find it to be problematic I do. Based upon your statement and that of the cooperating co-defendants, the State has a strong racketeering case. Additionally, your statement concerning dealing with defendant Roscoe are problematic and can result in you being convicted of those charges.. .[31]

         Defendant's view was that no one would testify against him, and he preferred to focus on attacking the wiretap evidence.[32] Defendant's choice to ignore critical evidence and Trial Counsel's advice, cannot now support a claim of ineffective assistance of counsel.

         B. Defendant Was Informed of the Risks of Trial Prior to Rejecting the Plea

         With respect to the issue of the plea negotiations, the record reflects Defendant's rejection of an offer on October 7, 2015, after the Final Case Review Hearing and after the Court directed the State to summarize its case on the record. The Court's intent was to ensure Defendant was fully aware of the State's case, separate and apart from the wiretap evidence. The State complied and at the conclusion of the hearing, the Court addressed Defendant directly. Defendant was advised that he was in a difficult ...

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