Rosser v. State ( 2019 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MARCUS ROSSER, §
§
Defendant Below, § No. 41, 2019
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. N1407011336
§
Plaintiff Below, §
Appellee. §
Submitted: September 20, 2019
Decided: October 28, 2019
Before VALIHURA, SEITZ, and TRAYNOR, Justices.
ORDER
(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
2
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
1
Rosser v. State, 2016 WL 1436604 (Del. Apr. 5, 2016).
2
State v. Rosser, 2018 WL 6432985 (Del. Super. Ct. Nov. 26, 2018) (Commissioner’s report and
recommendation).
3
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
3
State v. Rosser, 2018 WL 6721365 (Del. Super. Ct. Dec. 20, 2018).
4
Murphy v. State, 632 A.2d 1150 (Del. 1993).
5
Baynum v. State, 211 A.3d 1075, 1082 (Del. 2019).
6
Id.4
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 negligently
failed to collect the cigarette pack, which might have contained material evidence of
the robber’s identity, in the form of DNA or fingerprints.
(11) Rosser has not overcome the strong presumption of reasonable
representation or demonstrated actual prejudice concerning this claim, because he
7
Harris v. State, 2018 WL 3239905, at *2 (Del. July 2, 2018) (citing Strickland v. Washington,
466 U.S. 668, 687-88 (1984)).
8
Albury v. State, 551 A.2d 53, 59 (Del. 1988).
9
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
10
Baynum v. State, 133 A.3d 963, 967 (Del. 2016) (internal quotations omitted). See Deberry v.
State, 457 A.2d 744 (Del. 1983) (holding that the State, including its police agencies, is obligated
to preserve evidence that is material to a defendant’s guilt or innocence and that, when the State
fails in this duty, the defendant is entitled to an inference that the evidence would be exculpatory);
Lolly v. State, 611 A.2d 956 (Del. 1992) (extending Deberry to a claim involving a police failure
to gather evidence).
5
has not shown that the cigarette package was material to his guilt or innocence.
“Evidence is material only if there is a reasonable probability that it will affect the
result of the proceeding.” 11 In Lolly, the police failed to collect blood that was left
behind when a burglar entered a residence through a booby-trapped window; there
were no eyewitnesses to the burglary and the blood likely would have contained
evidence material to the identification of the perpetrator. 12 In this case, in contrast,
the victim identified Rosser as the perpetrator, and it is mere speculation that the
cigarette pack might have provided any evidence regarding the robber’s identity. 13
(12) Second, Rosser contends that his trial counsel provided ineffective
assistance by agreeing, with Rosser’s assent, to stipulate that Rosser was a person
prohibited from possessing a firearm and by failing to seek to sever trial of the
APFBPP charge from trial on the other charges. A defendant making an ineffective
assistance of counsel claim based on a failure to seek severance of charges “must
show that joinder of the offenses was sufficiently prejudicial that it was objectively
unreasonable for defense counsel not to move for severance.”14 Moreover,
“[j]oinder of person-prohibited charges with other charges is appropriate when the
11
Cook v. State, 2000 WL 1177695, at *4 (Del. Aug. 14, 2000).
12
Lolly, 611 A.2d at 958.
13
See Cook, 2000 WL 1177695, at *4 (holding that counsel was not ineffective for failing to
request a Lolly instruction concerning blood observed in a getaway car; the blood was not material
to the defendant’s claim of misidentification because the defendant was identified by
eyewitnesses).
14
Moody v. State, 2018 WL 4676706, at *2 (Del. Sept. 24, 2018) (internal quotations omitted).
6
charges are ‘based on the same act or transaction[,] constituting parts of a common
scheme or plan.’”15
(13) Joinder was appropriate here, and Rosser therefore cannot show that it
was objectively unreasonable for trial counsel not to seek severance. Rosser was
charged with Aggravated Possession of a Firearm by a Person Prohibited, which
required the jury to conclude that, while Rosser possessed the firearm, he caused
serious physical injury to Maddrey. The APFBPP charge was therefore part of the
“same act or transaction” as the other charges arising from the Maddrey incident,
and counsel did not act unreasonably by not seeking severance. Moreover, in these
circumstances, there is no reason to believe that severance of the charges would have
resulted in a different outcome. Similarly, the Superior Court did not err by
determining that trial counsel’s advice to Rosser to stipulate to his person-prohibited
status in order to prevent the jury from hearing evidence regarding Rosser’s prior
convictions was not unreasonable or substantially prejudicial.16
(14) Third, Rosser asserts that his trial counsel failed to adequately
investigate the case. Specifically, he contends that trial counsel did not attempt to
15
Brooks v. State, 2018 WL 5980577, at *2 (Del. Nov. 13, 2018).
16
See id. at *3 (stating that stipulation to person-prohibited status was a reasonable trial strategy
because it minimized the effect of the defendant’s criminal history on the trial and that, “[v]iewed
together, trial counsel’s decisions to forgo a severance motion so that Brooks faced one trial and
to stipulate that Brooks was a person-prohibited were neither objectively unreasonable nor
sufficiently prejudicial to warrant relief under rule 61”).
7
develop a justification defense based on the statements of “Nas,” an acquaintance of
Rosser’s and Maddrey’s who interacted with Rosser and Maddrey at the 7-Eleven
store shortly before the Maddrey shooting. In his affidavit in response to Rosser’s
postconviction motion, trial counsel indicated that in his view the evidence did not
support a self-defense claim, because Rosser never admitted shooting Maddrey and
there was no evidence that Maddrey was the aggressor in the confrontation or that
he possessed a weapon.17 In support of his claim of ineffective assistance, Rosser
has submitted a transcript of an interview that a defense investigator conducted with
Nas. Nas told the defense investigator that he was speaking to Maddrey at the 7-
Eleven store when Rosser arrived. Nas stated that Rosser was acting erratically, and
that Rosser referred to Maddrey as “the enemy” and threatened to “shoot all y’all
up” before speeding off in his vehicle.18 Nas also stated that he called Rosser later
to check on him and Rosser said “Man, I think I messed up. I messed up.” 19 The
Nas interview is not exculpatory, and therefore does not support a conclusion that
trial counsel’s determination not to pursue a justification defense fell below an
objective standard of reasonableness, or that Rosser was prejudiced by that
determination.20
17
Appendix to Opening Brief at A-50.
18
Appendix to Opening Brief at A-20-22.
19
Appendix to Opening Brief at A-27.
20
See Tice v. State, 1995 WL 715854, at *3 (Del. Nov. 13, 1995) (rejecting claim of ineffective
assistance of counsel based on failure to call victim as a defense witness because further testimony
8
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Gary F. Traynor
Justice
from the victim “potentially could have done more harm than good” to the defense and the
defendant had “failed to substantiate to any degree how [the victim’s] testimony during the defense
portion of trial would have changed the outcome of the trial in [the defendant’s] favor”); Slater v.
State, 1995 WL 89955, at *4 (Del. Mar. 1, 1995) (“[A]lthough Slater complains about counsel’s
failure to call certain witnesses, he offers no proof of the exculpatory testimony they could have
provided. In sum, it does not appear from the record that counsel’s representation was below an
objective standard of reasonableness under prevailing professional norms.”).
9