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Rosser v. State

Supreme Court of Delaware

October 28, 2019

MARCUS ROSSER, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: September 20, 2019

          Court Below-Superior Court of the State of Delaware Cr. ID No. N1407011336

          Before VALIHURA, SEITZ, and TRAYNOR, Justices.

          ORDER

          Gary F. Traynor Justice.

         (1) The 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.

         (2) The 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.

         (3) The 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.

         (4) 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.

         (5) 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.[1]

         (6) 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.

         (7) The 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.[2] After de novo review, the Superior Court adopted the Commissioner's recommendations.[3] Rosser has appealed to this Court.

         (8) On 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 Court.[4]

         (9) We review the Superior Court's denial of postconviction relief for abuse of discretion.[5] We review de novo constitutional claims, including claims of ineffective assistance of counsel.[6] 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.[7] Although not insurmountable, there is a strong presumption that counsel's representation was professionally reasonable.[8] A defendant must also make concrete allegations of actual prejudice to substantiate a claim of ineffective assistance of counsel.[9]

         (10) 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."[10] Rosser contends that the police officers who investigated the Buchanan robbery ...


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