Submitted: July 6, 2019
REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR
POSTCONVICTION RELIEF SHOULD BE DENIED.
Prothonotary Ross A. Flockerzie.
Esquire Nicole M. Walker, Esquire.
Taylor, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
Christopher S. Koyste, Esquire, Attorney for Defendant
M. Parker, Commissioner Judge.
29th day of October, 2019, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court as follows:
AND PROCEDURAL HISTORY
January 22, 2013, Defendant Dewayne McNair was indicted on
the charges of Drug Dealing, Possession of a Firearm During
the Commission of a Felony ("PFDCF"), Possession of
a Deadly Weapon by a Person Prohibited ("PDWBPP"),
Carrying a Concealed Deadly Weapon ("CCDW"), and
Driving without a Valid License.
PDWBPP charge was severed from the other charges for trial.
The State entered a nolle prosequi for the charge of
Driving without a Valid License on November 19, 2013.
November 22, 2013, following a three-day Superior Court jury
trial, McNair was found guilty of Drug Dealing and PFDCF.
McNair was found not guilty of CCDW. On January 8, 2014,
following a Superior Court jury trial, McNair was found not
guilty of the severed charge of PDWBPP.
sentencing was pending, McNair filed a motion for a new trial
based on issues that came to light at the Chief Medical
Examiner's Office. That motion was denied by the Superior
Court on February 1, 2016. On November 18, 2016, after the
State's motion to declare McNair a habitual offender was
granted, McNair was sentenced. McNair's prior convictions
included Possession with Intent to Deliver Heroin (1998),
Robbery First Degree (2001), Possession of a Firearm During
Commission of a Felony (2001), Assault Second Degree (2001),
Possession with Intent to Deliver Heroin (2008), CCDW (1998),
and CCDW (1999).
was sentenced as a habitual offender to a total of 35 years
of Level V incarceration, suspended after 25 years, for
decreasing levels of supervision.
filed a direct appeal. The Delaware Supreme Court affirmed
the judgment of the Superior Court on October 2,
trial testimony fairly established that on December 5, 2012,
McNair was driving a rental car, a gray Honda, when he was
stopped by police at 8th and Spruce Street in
Wilmington, Delaware. McNair was the only occupant in the
car. McNair was taken into custody and his vehicle was driven
back to the Wilmington Police Department. After obtaining
permission to conduct an administrative search of the car, a
loaded handgun was found underneath the passenger
was also found to be in possession of about 6 grams of
cocaine. In McNair's waist band he had a
clear knotted plastic sandwich bag that contained 5.38 grams
of cocaine in a brick-type form and seven smaller yellow in
color Ziploc baggies containing a combined total of .82 grams
of cocaine. These small bags of cocaine are commonly referred
to as "dime" bags. The 5.38 grams of cocaine
in the bag, in a brick type form, was worth about $538, and
the seven bags of cocaine in the dime bags were worth about
$70-80. The combined worth of the cocaine was
was also found in possession of $231.00. There was no drug
paraphernalia found in the car to indicate personal use. No
straws, pipes or anything else that may be used to ingest
drugs were found in the car. Nor was there any indicia of
drug dealing such as scales, empty baggies to package drugs,
cutting agents or drug ledgers.
State's expert witness, Detective Janvier, was a
detective with the Wilmington Police Department who had
eighteen years of experience working undercover, conducting
drug purchases, and working on hundreds if not thousands of
drug investigations. Detective Janvier testified that
McNair was in possession of the cocaine with the intent to
deliver. This opinion was based on a number of factors: the
packaging of the cocaine in both the break-off and individual
baggies, the location where the drugs were found on McNair,
the money seized, the rental vehicle, the location where
McNair was in- 8th and Spruce Streets, all
combined suggested possession with intent to
Janvier testified that typically a drug buyer for personal
use buys just what they are going to use, one or a few dime
bags, not $600 dollars worth of crack cocaine. Moreover,
typically a drug buyer does not buy both- a break-off chunk
of cocaine and bags of cocaine. A drug buyer buys one or the
other, not both.
Janvier testified that it was not uncommon for a drug dealer
to use a rental car for drug related activities. It is harder
to seize a vehicle if it is not in the individual's name
and it is more difficult to associate the vehicle with a
particular individual if the vehicle is not owned by that
told the police that he had just stolen the crack cocaine
from an alleyway and that was why he was driving fast when he
was stopped by the police.' McNair also told the police
that he was going to take the crack cocaine and mix it with
marijuana and smoke it.
was, however, not in possession of any
marijuana. McNair did not have any drug
paraphernalia in his possession to indicate personal use of
either marijuana and/or cocaine.
also told the police that the gun was not his. He said that a
friend who had been in the car earlier in the day had handed
the gun to him, and that after handling it, McNair had handed
it back to the friend. McNair admitted to touching the gun.
McNair claimed the friend must have left the gun in the car.
McNair claimed that he was unaware that the firearm was still
in the vehicle.
elected not to testify at trial. The jury found McNair
guilty of Drug Dealing and PFDCF and acquitted him of CCDW.
December 8, 2017, McNair filed the subject Rule 61 motion and
requested the appointment of counsel. The request for the
appointment of counsel was granted on February 6, 2018. On
August 7, 2018, counsel filed an amended motion for
postconviction relief raising three claims. All three claims
raised ineffective assistance of counsel contentions.
making a recommendation, the record was enlarged and
McNair's trial counsel and appellate counsel were
directed to submit their respective Affidavits responding to
McNair's claims. The State submitted a response to
McNair's amended motion and McNair's Rule 61 counsel
filed a reply thereto.
evidentiary hearing was held on May 7, 2019. Following the
evidentiary hearing, the parties were permitted to submit
supplemental briefing. On June 20, 2019, McNair's Rule 61
counsel filed a supplemental ...