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State v. McNair

Superior Court of Delaware

October 29, 2019

STATE OF DELAWARE, Plaintiff,
v.
DEWAYNE MCNAIR, Defendant.

          Submitted: July 6, 2019

         COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED.

          Prothonotary Ross A. Flockerzie.

          Esquire Nicole M. Walker, Esquire.

          John Taylor, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Christopher S. Koyste, Esquire, Attorney for Defendant Dewayne McNair.

          Lynne M. Parker, Commissioner Judge.

         This 29th day of October, 2019, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court as follows:

         BACKGROUND AND PROCEDURAL HISTORY

         On 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.

         The 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.

         On 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.

         While 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.[1] 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).[2]

         McNair 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.

         McNair filed a direct appeal. The Delaware Supreme Court affirmed the judgment of the Superior Court on October 2, 2017.[3]

         FACTS

         The 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 seat.[4]

         McNair was also found to be in possession of about 6 grams of cocaine.[5] 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.[6] 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.[7] The combined worth of the cocaine was about $600.[8]

         McNair was also found in possession of $231.00.[9] 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.[10]

         The 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.[11] 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 deliver.[12]

         Detective 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.[13]

         Detective 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 individual.[14]

         McNair 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.'[15] McNair also told the police that he was going to take the crack cocaine and mix it with marijuana and smoke it.[16]

         McNair was, however, not in possession of any marijuana.[17] McNair did not have any drug paraphernalia in his possession to indicate personal use of either marijuana and/or cocaine.[18]

         McNair 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.[19]

         McNair elected not to testify at trial.[20] The jury found McNair guilty of Drug Dealing and PFDCF and acquitted him of CCDW.

         RULE 61 MOTION

         On 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.

         Before 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.[21]

         An 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 ...


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