Submitted: September 20, 2019
Below-Superior Court of the State of Delaware Cr. ID No.
VALIHURA, SEITZ, and TRAYNOR, Justices.
F. Traynor Justice.
appellant, Marcus Rosser, has appealed the Superior
Court's denial of his first motion for postconviction
relief under Superior Court Criminal Rule 61. After careful
consideration of the parties' briefs and the record, we
affirm the Superior Court's judgment.
record reflects that in May 2015, a Superior Court jury found
Rosser guilty of Assault First Degree; two counts of
Possession of a Firearm During the Commission of a Felony;
Carrying a Concealed Deadly Weapon; Robbery First Degree; and
Aggravated Possession of a Firearm by a Person Prohibited
("APFBPP"). After a presentence investigation, the
Superior Court sentenced Rosser to a total period of forty
years of incarceration, to be suspended for probation after
serving eighteen years in prison.
evidence presented at trial reflected that, around 8:00 p.m.
on July 13, 2014, Ronald Maddrey encountered Rosser, who was
an acquaintance of Maddrey's, at a 7-Eleven convenience
store in New Castle, Delaware. Rosser was driving a silver
SUV. Maddrey agreed to sell marijuana to Rosser at a
different location. Maddrey and Rosser then drove their
vehicles to a nearby apartment complex. As Maddrey approached
Rosser's SUV, Rosser pulled out a gun and shot Maddrey in
the arm. During a police interview after the shooting,
Maddrey identified Rosser as his assailant.
Later that same evening, a teenager named Tyler Buchanan was
outside a different New Castle convenience store when a man
in an SUV beckoned Buchanan to approach the vehicle. Buchanan
did not comply, and he made a rude hand gesture when the man
started to drive away. The man then returned, and as Buchanan
walked toward the vehicle, the man brandished a gun at Buchan
and robbed him of a pack of cigarettes. Later, in the early
morning hours of July 14, 2014, the police showed Buchanan a
photographic array. Buchanan identified Rosser as the man who
robbed him at gunpoint.
Shortly after the Buchanan robbery, a police officer observed
an SUV matching the description of Rosser's SUV near the
apartment complex where Maddrey had been shot. The officer
stopped the vehicle and arrested Rosser. The police searched
the SUV and seized a revolver with one bullet missing. Both
Maddrey and Buchanan testified at trial and identified Rosser
as their assailant. Rosser did not testify at trial. This
Court affirmed on direct appeal.
Following his conviction, Rosser filed several motions,
including a pro se motion for postconviction relief
in which he asserted that his trial counsel provided
ineffective assistance. The Superior Court appointed
postconviction counsel to represent him. After reviewing the
record, postconviction counsel concluded that there were no
meritorious grounds for relief and moved to withdraw under
Superior Court Criminal Rule 61(e)(7). After additional
submissions, including an affidavit from trial counsel
addressing the claims of ineffective assistance of counsel,
the motion for postconviction relief was referred to a
Commissioner for a report and recommendation under Superior
Court Criminal Rule 62.
Commissioner entered a report and recommendation in which she
concluded that Rosser's motion for postconviction relief
was without merit and recommended that the court deny the
motion for postconviction relief and grant postconviction
counsel's motion to withdraw. After de novo
review, the Superior Court adopted the Commissioner's
recommendations. Rosser has appealed to this Court.
appeal, Rosser argues that the Superior Court erred by ruling
that his trial counsel did not provide ineffective assistance
by (i) failing to request a "missing evidence" jury
instruction; (ii) stipulating that Rosser was a person
prohibited from possessing a firearm and failing to file a
motion to sever the APFBPP charge from the other charges; and
(iii) failing to adequately investigate the case. To the
extent that Rosser has not raised or briefed on appeal other
claims that he presented to the Superior Court, those claims
are deemed waived and will not be addressed by the
review the Superior Court's denial of postconviction
relief for abuse of discretion. We review de novo
constitutional claims, including claims of ineffective
assistance of counsel. In order prevail on a claim of ineffective
assistance of counsel, a defendant must demonstrate that (i)
his defense counsel's representation fell below an
objective standard of reasonableness, and (ii) there is a
reasonable probability that but for counsel's errors, the
result of the proceeding would have been
different. Although not insurmountable, there is a
strong presumption that counsel's representation was
professionally reasonable. A defendant must also make concrete
allegations of actual prejudice to substantiate a claim of
ineffective assistance of counsel.
First, Rosser argues that trial counsel was ineffective
because he did not request a Lolly instruction based
on the State's failure to collect the stolen cigarette
pack, which the robber tossed into the street after taking it
from Buchanan at gunpoint. A Lolly instruction
"tells the jury, in a case where the State has failed to
collect or preserve evidence which is material to the
defense, to assume that the missing evidence would have
tended to prove the defendant not guilty." Rosser
contends that the police officers who investigated the
Buchanan robbery ...