Cuffee v. State ( 2019 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MICAH O. CUFFEE, §
§
Defendant Below, § No. 19, 2018
Appellant, §
§ Court Below: Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. 1209013919 (K)
§
Plaintiff Below, §
Appellee. §
Submitted: March 15, 2019
Decided: May 6, 2019
Before VALIHURA, SEITZ, and TRAYNOR, Justices.
ORDER
Upon consideration of the briefs of the parties and the record in this case, it
appears to the Court that:
(1) The defendant below-appellant, Micah O. Cuffee, 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) On August 7, 2013, a Superior Court jury found Cuffee guilty of
Attempted Theft, Conspiracy in the Second Degree, and Criminal Mischief. After
granting the State’s petition to declare Cuffee a habitual offender, the Superior Court
sentenced Cuffee to eight years of Level V incarceration for Attempted Theft, two
years of Level V incarceration, suspended for one year of Level III probation, for
Conspiracy in the Second Degree, and a fine of $250 for Criminal Mischief.
(3) This Court affirmed Cuffee’s convictions on direct appeal.1 The Court
described the events leading to Cuffee’s convictions as follows:
On the night of September 19, 2012, a resident of a development located
near Walker Road in Dover heard a vehicle, a screeching, metallic noise
like something was being dragged, and voices outside the back of her
townhouse. Office buildings, which were closed for the day, were
located behind the caller’s townhouse. The resident called 911 to report
the noises at approximately 10:30 p.m. Corporal Gregory Hopkins and
other members of the Dover police responded to the 911 call.
Initially, Hopkins and the other police officers checked businesses and
communities along Walker Road for the source of the reported noises.
Hopkins checked 1155 Walker Road and did not see anything there.
Hopkins then went to the 911 caller’s townhouse and spoke to her about
what she had heard in order to pinpoint the location of the noises. Based
on that conversation, Hopkins drove back to 1155 Walker Road, which
was located behind the townhouse.
Hopkins walked around the building located at 1155 Walker Road and
saw four, disconnected air conditioning units behind the building and
near a shed. The air conditioners had been cut from the building located
at 1155 Walker Road. Hopkins reported his findings and it was decided
that he would stay in the area to conduct surveillance in case someone
returned to pick up the disconnected air conditioners. Other officers set
up a perimeter near Walker Road.
Shortly after Hopkins concealed himself under some trees to monitor the
area where the air conditioners were located, he observed a maroon
minivan, with no headlights on, driving in from Walker Road. After
driving into the parking lot that was closest to the disconnected air
1
Cuffee v. State, 2014 WL 5254614, at *3-8 (Del. Oct. 14, 2014).
2
conditioners, the minivan began backing up over a bed of rocks near the
air conditioners and became stuck.
Hopkins watched the minivan occupants attempt to remove the minivan
from the rocks. They were unsuccessful and called somebody for
assistance. Although Hopkins could see the occupants of the minivan
walk around it, he could not see them at all times. Hopkins observed a
white pick-up truck drive in from Walker Road and tow the minivan off
of the rocks. Cuffee’s cousin, Walter Cuffee, testified that Cuffee called
him the night of September 19, 2012 for assistance. Walter Cuffee drove
his white pick-up truck to Walker Road, where he testified that he picked
up Cuffee and Mark McDonald, and then helped Cuffee and McDonald
tow the minivan from the rocks. After Hopkins watched the white pick-
up truck and maroon minivan leave the parking lot, he saw that the
disconnected air conditioners were no longer where he had previously
seen them. Hopkins radioed police units on Walker Road to report that
the air conditioners had been taken and that both the white pick-up truck
and maroon minivan should be stopped. Hopkins then walked around
the area and saw that the air conditioners had been moved to the other
side of the shed.
Police stopped the white pick-up truck and maroon minivan. Cuffee was
driving the minivan and McDonald was the passenger. Both men were
arrested. In a search of the minivan, the police found a pair of bolt
cutters, Channellock pliers, a flashlight, and two pairs of work gloves.
All of the seats, except for the driver seat and front passenger seat, had
been removed from the minivan. Cuffee’s daughter testified that she
owned the minivan and that the equipment in the minivan belonged to
her husband.2
(4) On August 11, 2015, Cuffee filed a timely motion for postconviction
relief. The motion was assigned to a Superior Court Commissioner. On October
28, 2015, Cuffee filed a motion to compel in which he sought to listen again to a CD
2
Id. at *1-2.
3
of the 911 calls and police officers’ radio communications from the night of his
arrest. The State opposed the motion, arguing that Cuffee had already listened to the
recordings during his direct appeal and had not established a basis to listen to the
recordings again. The Commissioner denied Cuffee’s motion.
(5) After Cuffee supplemented and amended his motion for postconviction
relief, his former counsel filed affidavits in response, and the State responded to the
motion, the Commissioner issued a report and recommendation on August 7, 2017.
The Commissioner found that Cuffee failed to overcome the Rule 61 procedural bars
and recommended denial of his motion for postconviction relief. Cuffee objected to
the Commissioner’s report and recommendation. On November 13, 2017, after de
novo review of the record, the Superior Court accepted the Commissioner’s report
and recommendation and denied the motion for postconviction relief.3 This appeal
followed.
(6) We review the Superior Court’s denial of postconviction relief for
abuse of discretion, although we review questions of law de novo.4 Both the
Superior Court and this Court on appeal first must consider the procedural
requirements of Rule 61 before considering the merits of any underlying
postconviction claims.5 The procedural bars of Rule 61 do not bar a timely claim of
3
State v. Cuffee, 2017 WL 5606703 (Del. Nov. 13, 2017).
4
Claudio v. State, 958 A.2d 846, 850 (Del. 2008).
5
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
4
ineffective assistance of counsel.6 Cuffee argues, as he did below, that the Superior
Court erred: (i) in denying his motion to compel; (ii) in finding his claims of
improper amendment of the indictment, prosecutorial misconduct, erroneous
admission of photographs showing copper tubing, improper withholding of the
recordings, and violation of his right to represent himself procedurally barred; and
(iii) in finding that his counsel was not ineffective. Cuffee has waived appellate
review of the other claims he raised below but he did not argue in his opening brief.7
(7) Cuffee argues that the Superior Court Commissioner should have
granted the motion to compel because the recordings contain Brady v. Maryland8
material (references to a vehicle near the crime scene with air conditioners and a
man in a hoodie) relevant to his postconviction motion, it was more than two years
since he last heard the recordings, and it would not be unduly burdensome for the
State to arrange for him to listen to the recordings again. Cuffee raised the
recordings on direct appeal, arguing that the State’s failure to produce recordings of
911 calls and police officers’ radio communications the night of September 19, 2012
was a violation of the State’s discovery obligations and Brady. The Court granted,
6
Bradley v. State, 135 A.3d 748, 759 (Del. 2016).
7
Somerville v. State, 703 A.2d 629, 631 (Del. 1997); Murphy v. State, 632 A.2d 1150, 1152 (Del.
1993). These claims included a police officer providing false information, ineffective assistance
based on his counsel not filing a motion for a new trial within seven days, and the State withholding
a traffic ticket issued to Cuffee and a police officer’s notes.
8
373 U.S. 83 (1963).
5
over Cuffee’s objections, the State’s motion to expand the record to include a CD of
the recordings, and the State arranged for Cuffee to hear the recordings.
(8) The Court addressed and rejected Cuffee’s claims concerning the
recordings on direct appeal. As to the alleged discovery violation, the Court assumed
without deciding that Cuffee’s discovery requests encompassed the recordings, but
found that the failure to produce the recordings was not central to the case and
Cuffee’s substantial rights were not prejudicially affected.9 The Court also found
that Cuffee’s Brady violation claim lacked merit.10 In addressing references on the
recordings to other vehicles less than two miles from the crime scene that could or
were carrying air conditioners, we held:
As far as the police officers’ observation of a truck with a tarp on Route
8 while Hopkins was watching the maroon minivan become stuck on
rocks near the disconnected air conditioners or the possible sighting of
a vehicle with an air conditioner while Cuffee was being arrested (and
while the air conditioners at issue were still at 1155 Walker Road), this
information essentially amounts to the existence of other vehicles that
could transport or were transporting air conditioners. Unlike the
maroon minivan driven by Cuffee, these vehicles were not observed
near the disconnected air conditioners at 1155 Walker Road after a
nearby resident heard voices and dragging noises. The existence of
these other vehicles adds little to Cuffee’s defense.11
9
Cuffee, 2014 WL 5254614, at *6-7.
10
Id. at *7 (finding that the recordings were not exculpatory or impeaching of the police witnesses’
testimony and that the suppression of the recordings did not undermine confidence in the outcome
of the trial).
11
Id. The man in the hoodie was with the truck on Route 8, not walking near the disconnected air
conditioners as Cuffee suggests.
6
Cuffee seeks to listen to the recordings again so he can raise claims that this Court
has already rejected. Rule 61(i)(4) bars any claim that was formerly adjudicated.
Under these circumstances, the Superior Court did not err in denying Cuffee’s
motion to compel.
(9) The Superior Court also did not err in finding that Cuffee’s claims
concerning the amendment of the indictment, the prosecutor’s statements about
when Cuffee was at 1155 Walker Road and the theft of air conditioners, the violation
of his right to represent himself, and the withholding of the audio recordings, were
barred by Rule 61(i)(4). This Court addressed, and rejected, all of these claims on
direct appeal.12 Rule 61(i)(4) does not apply to a claim that the Superior Court lacked
jurisdiction or that satisfies Rule 61(d)(i) (new evidence that creates a strong
inference of actual innocence) or 61(d)(ii) (a new rule of constitutional law renders
the conviction invalid),13 but Cuffee has failed to show that any of these exceptions
apply here.
(10) As recognized by the Superior Court, many of Cuffee’s remaining
claims are barred by Rule 61(i)(3). Rule 61(i)(3) bars any claim that was not asserted
12
Id. at *2-8 (affirming the amendment of the indictment, finding no prosecutorial misconduct
based on statements regarding when Cuffee was at the crime scene and the harvesting of air
conditioners, holding Cuffee was not entitled to reversal of his convictions assuming there was a
discovery violation, deciding that the Brady claims were without merit, and concluding that Cuffee
waived his right to represent himself).
13
Super. Ct. Crim. R. 61(i)(5).
7
in the proceedings leading to the judgment of conviction unless the movant shows
cause for relief from the procedural default and prejudice from a violation of the
movant's rights. Cuffee’s counsel objected to the introduction of photographs
showing copper tubing in the minivan at trial, but Cuffee failed to raise this issue on
direct appeal. He has not shown cause for the procedural default.
(11) Cuffee also makes several prosecutorial misconduct claims that he did
not raise at trial or on appeal. These claims include: (i) the prosecutor introduced
Channellocks into evidence that were not found in the minivan as a police officer
testified; (ii) the prosecutor stated that the bolt cutters found in the minivan were
functional, but failed to show their functionality;14 (iii) three pairs of gloves were
found in the minivan, but the prosecutor only introduced two pairs into evidence;
and (iv) the prosecutor failed to introduce a notebook found in the minivan into
evidence. Cuffee makes no effort to show cause for the failure to raise the claims
concerning the functionality of the bolt cutters. That claim is therefore barred by
Rule 61(i)(3). Cuffee asserts ineffective assistance of counsel to overcome the Rule
61(i)(3) procedural bar for the claims concerning the Channellocks, gloves, and
notebook, which we address along with his other ineffective assistance counsel
14
The prosecutor invited the jurors to look at and handle the bolt cutters during their deliberations.
8
claims below. Attorney error short of ineffective assistance of counsel does not
constitute cause for procedural default.15
(12) To prevail on his ineffective assistance of counsel claims, Cuffee must
establish that: (i) his counsel’s representation fell below an objective standard of
reasonableness; and (ii) but for counsel’s unprofessional errors, there is a reasonable
probability that the outcome of the proceedings would have been different.16
Although not insurmountable, the Strickland standard is highly demanding and
subject to a “strong presumption that the representation was professionally
reasonable.”17 The defendant must also set forth and substantiate concrete
allegations of actual prejudice.18
(13) Cuffee argues that his counsel was ineffective because he: (i) failed to
investigate or object to the prosecutor’s mishandling of evidence as discussed above;
(ii) failed to request a continuance to review the audio recordings and use those
recordings at trial; (iii) failed to move for a mistrial based on the cumulative effect
of the missing gloves and notebook, the introduction of Channellocks that were not
found in the minivan, and the withholding of the recordings; and (iv) failed to request
15
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
16
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
17
Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
18
Younger, 580 A.2d at 556.
9
the removal of a juror that the prosecutor recognized. The Superior Court did not
err in finding Cuffee failed to show his counsel was ineffective.
(14) First, the record does not support Cuffee’s claim that the prosecutor
introduced Channellocks into evidence that were not found in the minivan as a police
officer testified. This claim is based on Cuffee’s contention that the Channellocks
do not appear in the police reports, the intake form referenced in the State’s
discovery responses under Rule 16, or photographs of the van interior. But the
State’s discovery responses stated that the intake form might not list all physical
evidence (which was also available for inspection), and the Channellocks do appear
in one of the van interior photographs (State Exhibit 21). Cuffee has not shown there
was any prosecutorial misconduct for his attorney to investigate or note an objection.
Nor has Cuffee shown that his counsel had any basis to object to the State not
introducing the notebook into evidence at trial.
(15) As to the gloves, Cuffee’s trial counsel stated in his affidavit that he did
not challenge the number of gloves introduced at trial versus the number of gloves
found in the minivan because he was concerned that the jury might view that as
reaching for straws and it made more sense to rely on the location of the gloves
(under the bolt cutters instead of on top of the bolt cutters as one would expect).
Cuffee claims that the third pair of gloves would have supported his claim that the
minivan belonged to his son-in-law. But another pair of gloves would simply have
10
been cumulative of his daughter’s testimony that the minivan, tools, and gloves in
the minivan belonged to her husband who used the minivan for his masonry work.
Cuffee has not shown a reasonable probability that introduction of another pair of
gloves into evidence would have resulted in a different outcome.
(16) As to the recordings, Cuffee’s counsel explained in his affidavit that he
did not learn of the recorded communications among the police officers until his
cross-examination of one of the officers at trial. He felt that the evidence presented
so far was circumstantial at best and that asking for a continuance to review the
recordings might prejudice the jury against Cuffee. After trial he reviewed the
recordings and concluded that there was nothing of value for the defense.
(17) This Court reached a similar conclusion on direct appeal. We
concluded that the recordings were consistent with the police officers’ testimony at
trial, and that even if there was information “marginally favorable” to the defense
(the existence of other vehicles that could transport or were transporting air
conditioners), confidence in the outcome of the trial was not undermined.19 It was
the maroon minivan that Cuffee was driving, not the other vehicles, that was seen
near the disconnected air conditioners at 1155 Walker Road. Cuffee has not shown
a reasonable probability of a different result if the recordings had been introduced at
19
Cuffee, 2014 WL 5254616, at *7.
11
trial. In light of our rulings regarding the Channellocks, the third pair of gloves, the
notebook, and the recordings, Cuffee has not shown that his trial counsel had any
basis to move for a mistrial for cumulative error.
(18) Finally, Cuffee argues that his trial counsel was ineffective for failing
to request the removal of a juror recognized by the prosecutor. On the second day
of trial, the prosecutor informed the Superior Court that he recognized one of the
jurors from a gym he belonged to in the late 1990s and early 2000s. The prosecutor
stated that they would speak at the gym. At the request of Cuffee’s counsel, the
Superior Court asked the juror separately if he recognized the prosecutor or defense
counsel from anywhere other than the trial. The juror responded that he did not.
Cuffee’s counsel agreed with the Superior Court that there was nothing further to
pursue.
(19) In his affidavit, Cuffee’s counsel states that the juror did not recognize
the prosecutor and would have been replaced by an alternate who worked for law
enforcement, which Cuffee disputes. Cuffee also argues that his counsel should have
sought the juror’s removal because that is what Cuffee wanted. Given the amount
of time since the prosecutor had apparently last interacted with the juror and the fact
that the juror did not recognize the prosecutor, counsel’s decision not to seek
removal of the juror fell within the range of reasonable professional assistance.
12
Cuffee did not have the right to dictate trial strategy.20 Having carefully considered
the parties’ positions, we conclude that the Superior Court did not err in denying
Cuffee’s motion for postconviction relief.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
20
Gunter v. State, 2016 WL 2765360, at *3 (Del. May 9, 2016) (recognizing that criminal
defendant does not have a right to dictate trial strategy); Zimmerman v. State, 2010 WL 546971,
at *2 (Del. Feb. 16, 2010) (recognizing that criminal defendant has a right to counsel, but not a
right to counsel who will not disagree on trial strategy and that counsel is not obligated to obtain
the defendant’s consent to every tactical decision).
13