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State v. Demby

Superior Court of Delaware, Kent

August 21, 2019

STATE OF DELAWARE
v.
MICHAEL E. DEMBY, Defendant.

         RK12-07-0025-01 DDeal Tier 4 (F), RK12-07-0026-01 Consp 2nd (F), RK12-07-0028-01 Poss Drug Parap (M)

         COMMISSIONER'S REPORT AND RECOMMENDATION

         Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61

          Nicole S. Hartman, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.

          Michael E. Demby a/k/a Michael E. Brooks, pro se.

          Andrea M. Freud, Commissioner

         The defendant, Michael E. Demby ("Demby") was found guilty following a jury trial on October 9, 2013 of one count of Drug Dealing Tier 4, 16 Del. C. § 4752; one count of Conspiracy in the Second Degree, 11 Del. C. § 512; and one count of Possession of Drug Paraphernalia, 16 Del. C. § 4771. The jury found him not guilty on separate counts of Drug Dealing Tier 4 and Conspiracy in the Second Degree and one count of Criminal Solicitation Second Degree and one count of Tier 5 Possession of Drugs. The State entered nolle prosequis on one count of Racketeering and another count of Tier 5 Possession. On October 11, 2013 Demby, through his counsel filed a Motion for Judgment of Acquittal. The Court denied the motion on November 25, 2013[1] and sentenced Demby to twenty-seven years incarceration suspended after serving fifteen years for varying levels of probation.

         A timely Notice of Appeal was filed with the Delaware Supreme Court by Demby's Trial Counsel. In the appeal the following claims were raised: whether the admission of a wiretap recording violated Demby's right to cross-examine the declarants; that the wiretap recordings should not have been admitted; and the State violated the Double Jeopardy clause. The Delaware Supreme Court found no merit in any of the claims and affirmed Demby's conviction and sentence on July 21, 2014.[2]Subsequently a Motion for a New Trial was filed alleging errors with the Office of Medical Examiner. That motion was denied in both this Court and the State Supreme Court.[3]

         On March 14, 2016 Demby filed a Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. Since his second appeal to the Delaware Supreme Court was still pending, that motion was deemed premature. Subsequently on November 21, 2016, Demby filed an Amended Motion for Postconviction Relief and an accompanying Motion for Appointment of Counsel. He raises one ground for relief alleging ineffective assistance of counsel. On December 17, 2017 the Court granted the Motion for Appointment of Counsel and subsequently Kevin P. Tray, Esquire ("Appointed Counsel") was appointed to represent Demby. After a 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 May 2, 2018, 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. Demby was sent a copy of the motion to withdraw and given thirty days to file a response. Appointed Counsel's motion to withdraw was granted by the Court on June 29, 2018.[4] Next the motion moved to briefing.

         FACTS

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

In May and June 2012, the Delaware State Police led a multi-agency law enforcement team that was investigating drug sales in Kent County, Delaware. The team used wiretaps to monitor communications by Galen Brooks, the target of the investigation. On May 26, 2012, the police heard a phone conversation between Brooks and Michael Demby, which led them to believe that a drug deal was about to take place. Based on that call, the police established surveillance at the McKee Crossing Shopping Center, and at Brooks's father's home on Red Oak Drive in Dover. In the next call, the police heard Brooks telling Demby to prepare a package of cocaine and to bring it to the buyer, who would be driving a Dodge Caravan. Brooks told Demby that the price was $2400. The police saw Demby leave the Red Oak Drive home and place a package in the trunk of a Honda parked at the house. Demby and Brooks' brother, James, then got into the Honda and drove off.
At the McKee Crossing Shopping Center, the police saw Dashawn Ayers seated in a Dodge Caravan in the parking lot. Demby and James arrived in the Honda and parked next to the Caravan. Demby got out of the Honda and got into the Caravan, while James went into a store in the shopping center. After a few minutes, Demby got out of the Caravan and went into the store James had entered. Shortly thereafter, the two men left the store returned to the Honda, and drove away. Ayers, driving the Caravan, also left the parking lot.
One of the officers in the surveillance unit that was following Ayers instructed Delaware State Police Corporal Timothy Valeski to conduct a traffic stop on the Caravan. Ayers produced his license, but when Valeski told him to exit the car, Ayers put the Caravan in gear and fled before the police could search it. Valeski was instructed not to pursue Ayers for public safety reasons.
After the meeting at the shopping center, the police contrived to monitor Brooks' phone conversations. Demby called Brooks and told him that everything had gone well and that he had the money. Brooks told Demby to keep $100 for his participation and to give the remaining $2300 to Valerie Brooks, his mother. Valerie called Brooks a few minutes later to tell him that she received the money. Brooks told his mother to keep $50 for herself.
Ayers turned himself in to the Delaware State Police on June 1, 2012, stating that he knew he had outstanding warrants. The next day, Brooks and Demby had a telephone conversation in which Brooks agreed to give Demby one ounce of cocaine for the good work Demby had done. Police later observed an exchange of money between the two men. On June 14, 2012, the Delaware State Police arrested Demby. A Kent County Grand Jury returned an indictment against Ayers, Demby, Brooks, and 11 other individuals. Ayers was charged with one count of Drug Dealing, one count of Aggravated Possession, and one count of Conspiracy Second Degree. Demby was charged with two counts of Drug Dealing, two ...

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