State v. Loman ( 2018 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ID. No. 1305()08595
In and for Kent County
STATE OF DELAWARE
V.
RKl3-O7-0105-01
RKl3-07-0107-01
RK13-07-0110-01
RK13-07-0111-01
RKl3-O7-0112-01
RK13-07-0113-01
RKl3-()7-0114-01
RK13-07-0115-01
RKl4-lO-0277-01
RK14-07-0278-()1
RK14-10-0279-01
AARON O. LOWMAN,
Defendant.
COMMISSIONER'S REPORT AND RECOMN[ENDATION
Upon Defendant's Motion for Postconviction Relief
Pursuant to Superior Court Criminal Rule 61
Nicole S. Hartman, Esquire, Deputy Attorney General, Department of Justice, for the
State of DelaWare.
Aaron O. Lowman, Pro se.
FREUD, Cornmissioner
October 24, 2018
The defendant, Aaron O. Lowman (“Lowman”) Was found guilty as charged,
following a jury trial on October 22, 2014, of one count of Possession of a Firearm
During the Commission of a Felony (“PFDCF”), 11 Del. C. § 1447A; two counts of
State v. Aaron O. Lowman
ID No. 1305008595
October 24, 2018
Possession of a Firearm by a Person Prohibited, ll Del. C. § l448(a)(9); one count
of Aggressive Driving, 21 Del. C. § 4175A; one count of Resisting Arrest, l l Del. C.
§ 1257; one count of Disregarding a Police Officer’s Signal, 21 Del. C. § 4103; one
count of Driving While Suspended or Revoked, 21 Del. C. § 2756; two counts of
Improper Lane Change, 21 Del. C. § 4122; one count of Speeding, 21 Del. C. § 4169;
and one count of Failure to have his Lights on, 21 Del. C. § 4331. Prior to trial the
State dismissed a number of additional driving offenses and several drug related
offenses. On November 24, 2014, the State filed a motion to declare Lowman an
habitual offender under ll Del C. § 4214(b). The Court granted the motion on
January 14, 2015 and sentenced Lowman to life incarceration Without the award of
good time.
A timely Notice of Appeal Was filed With the Delaware Supreme Court by
Lowman’s Trial Counsel. ln the appeal the following claim Was raised that the
Superior Court erred in denying Lowman’s motion for a mistrial after a Witness for
the State started to testify about a transaction in Which Lowman Was involved When
he acquired a handgun in exchange for drugs. The Delaware Supreme Court found
no merit in any of the claims and affirmed Lowman’s conviction and sentence on
August 28, 2015.l
On October 16, 2015, Lowman filed a motion for appointment of counsel and
a motion for postconviction relief pursuant to Superior Court Criminal Rule 61. He
raised six grounds for relief including ineffective assistance of counsel. On October
l Lowman v. State, 2015 WL 5120818 (Del. Supr.).
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State v. Aaron O. Lowman
lD No. 1305008595
October 24, 2018
27, 2015, the Court granted the motion for appointment of counsel, and on March 24,
2016, Brian J. Chapman (“Appointed Counsel”) was appointed to represent Lowman.
After an extremely thorough and conscientious review of the facts, the record and the
law in the case, Appointed Counsel filed a motion to withdraw as counsel on January
6, 2017, along with a memorandum in support of the motion, having concluded that
the motion was wholly without merit and that no meritorious grounds for relief
existed. Lowman was sent a copy of the motion to withdraw and given 30 days to file
a response. Appointed Counsel’s motion to withdraw was granted by the Court on
April 21, 2017.2
Next Lowman moved to amend his pro se motion for postconviction relief.
Lowman’s amended motion was filed on December 18, 2017. Afcer several revised
brief schedules the matter finally completed briefing and was sent for decision.
FACTS
Following are the facts as set forth by the Delaware Supreme Court:
(3) On the evening of June 15, 2013, Delaware State
Police Detective Matthew Long and Delaware Department
of Probation and Parole officer David Angelo were driving
in Smyrna, Delaware in an unmarked Chevrolet Impala.
They spotted Lowman, whom they knew was wanted on
outstanding criminal charges. Lowman was driving a
rented beige Nissan Altima registered in North Carolina.
(4) Detective Long and Officer Angelo attempted to stop
2 State v. Lowman, Del. Super., ID No. 1305008595, Witham, R.J. (April 21,
2017)(ORDER).
State v. Aaron O. Lowman
ID No. 1305008595
October 24, 2018
the Nissan. Officer Angelo got out of the police vehicle
with his gun drawn and identified himself as a probation
and parole officer. He addressed Lowman by name and
told him to step out of the car. lnstead of complying
Lowman sped away. Detective Long and Officer Angelo
chased the Nissan with warning lights on at speeds
exceeding 100 miles per hour. A camera in the police car
recorded the high speed chase. Lowman managed to pull
away, and the officers discontinued the chase.
(5) Long and Angelo came across the Nissan again later in
the evening and resumed pursuit. Lowman managed once
again to pull away from the police vehicle, but Long and
Angelo ultimately found the Nissan on State Route 9,
overturned on its roof.
(6) As Detective Long and Officer Angelo approached the
Nissan, they saw Lowman break the glass out of the back
window, crawl out of the vehicle, and attempt to run away.
Detective Long used his taser to subdue Lowman and then
put him in handcuffs.
(7) Lowman’s girlfriend, Marshay Johnson, who was also
charged in the matter, was inside the Nissan. The officers
took Lowman from the scene to Christiana Hospital for
medical treatment. After a tow truck arrived and turned the
Nissan upright, Delaware State Police Officer David Hake,
Jr. searched the vehicle and found a loaded handgun on the
driver’s floorboard and a package of .22 caliber
ammunition underneath the dashboard above the gas petal.
(8) Nine days later, Detective Long interviewed Lowman
at the James T. Vaughn Correctional Center. He read
Lowman a Miranda warning and Lowman confirmed that
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State v. Aaron O. Lowman
lD No. 1305008595
October 24, 2018
he understood his rights. Detective Long attempted to
record the interview but the quality of the recording turned
out to be poor. The interview was difficult to hear on the
recording and the recording was not introduced into
evidence at Lowman’s trial. Detective Long testified at
Lowman’s trial that in the course of the interview Lowman
told Detective Long that the handgun and ammunition
found in the Nissan belonged to him.
(9) The State called Detective Long as a witness at
Lowman’s trial. The following exchange took place
between the prosecutor and Detective Long, regarding the
interview with Lowman at the Vaughn Correctional Center.
Prosecutor: What did he say about the handgun?
Detective Long: I asked him questions about the
handgun. What Mr. Lowman advised to me is that
he obtained the handgun from what he described as
a fiend, or someone who commonly abuses drugs.
What he explained to me was that he traded three
grams of crack cocaine -
Interrupting the testimony, defense counsel objected and
moved for a mistrial. The prosecutor informed the court
that the witness had been instructed not to bring up drugs
during his testimony. Defense counsel argued that
Detective Long’s testimony was highly prejudicial to
Lowman because it introduced evidence of an uncharged
crime.
(10) The trial judge applied the four-factor test established
by this Court in Pena v. State to evaluate whether the
unsolicited comment from Detective Long was sufficiently
prejudicial to merit a mistrial. After reviewing all of the
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State v. Aaron O. Lowman
ID No. 1305008595
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factors, the court found the factors weighed against a
mistrial. Citing Lowman’s admission to the police that the
handgun and ammunition discovered in the rental car
belonged to him, the court concluded that the case was not
a close one and thus Lowman was not likely prejudiced by
Long’s testimony. The court also believed that a curative
jury instruction was sufficient to mitigate any prejudice
The court denied the motion for mistrial and instructed the
jury as follows:
Earlier you may have heard the officer, who
was on the stand, testify and provide
testimony which indicated that the handgun
was obtained through someone who
commonly abuses drugs. And it explained to
him that, perhaps, the drugs were traded for
prohibited contraband You are to ignore that
statement. That has no bearing on this case.
lt is to be stricken from the record, and you
are not to consider it at all in any
determination you have in this case.3
LOWMAN’S CONTENTIONS
Next, Lowman filed a Motion for Postconviction Relief pursuant to Superior
Court Rule 61. In his motion, he raises the following grounds for relief:
Ground one: I.A.C.4 due counsel’s failure to object
3 Lowman, 2015 WL 5120818, at *1-3 (footnotes omitted) (Del. Supr.).
4 The Court assumes Lowman means “Ineffective Assistance of Counsel” when he writes
“I.A.C. ”
State v. Aaron O. Lowman
ID No. 1305008595
October 24, 2018
Ground two:
Ground three:
Ground four:
Ground five:
where the trial court denied motion for
mistrial an abuse of discretion where
the states (sic) investigating officer
provided an unelicited (sic) response
on direct examination implicating that
the defendant was a drug dealer and/or
committed an act of drug dealing to
acquire gun.
I.A.C. counsel failed to suppress
incriminating statements where
defendant invoked his right to counsel
at the beginning of the recorded
interview counsel failed to follow basic
competent counsel rule suppress all
statements.
I.A.C. counsel failure to object to the
Detective’s created [illegible] alledged
(sic) testimony of the Defendant’s
confession their (sic) was no
foundation no tape and the Detective’s
testimony should have been excluded.
I.A.C. counsel failed to compel
Detective’s testimony of Detective
where Detective had statements of co-
defendant Marshay Johnson who said
the weapon was hers.
I.A.C. Counsel failed to object to the
Prosecution’s misrepresentation of
evidence where the state said their (sic)
would be a statement played however it
7
State v. Aaron O. Lowman
ID No. 1305008595
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HCV€I`` WaS.
Ground six: I.A.C. Petitioner’s Counsel failed to
raise Petitioner’s claims forcing him to
wave (sic) his constitutional arguments
On February 14, 2017 Lowman filed a Memorandum of Law adding the
following grounds:
Ground seven: Ineffective Assistance of Counsel.
Trial Counsel failed to request a
missing evidence jury instruction,
commonly known as a “Deberry
instruction” that would require the jury
to presume that the missing notes were
exculpatory.
Ground eight: Superior Court erred by not giving the
jury a “missing evidence” instruction
which has prejudice effect to Lowman
trial. The Sixth Amendment provides
that an individual accused of a crime
has the right to a trial by an impartial
jury.
Ground nine: Abuse of Discretion.
Trial judge abused his discretion by
denying a motion for mistrial following
an unsolicited response by a state
witness to the jury with prejudicial
effect. The Sixth Amendment provides
that an individual accused of a crime
has the right to a trial by an impartial
jury.
State v. Aaron O. Lowman
ID No. 1305008595
October 24, 2018
Ground ten: Ineffective Assistance of Counsel.
Trial Counsel was ineffective for
stipulating that movant was a person
prohibited from owning/possessing a
firearm.
On December 18, 2017 Lowman filed an Amended Motion for Postconviction
Relief adding the following grounds:
Ground eleven: Trial Counsel was ineffective for
failing to file a motion to suppress the
evidence and Mr. Lowman’s statement,
resulting in prejudice to Mr. Lowman.
Ground twelve: Trial court abused its discretion in
failing to instruct the Jury on all
elements of an offense precluding the
Jury from finding each fact necessary
to convict.
DISCUSSION
Under Delaware law, the Court must first determine whether Lowman has met
the procedural requirements of Superior Court Criminal Rule 61(1) before it may
consider the merits of the postconviction relief clairns.5 Under Rule 61,
postconviction claims for relief must be brought within one year of the conviction
5 Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
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State v. Aaron O. Lowman
ID No. 1305008595
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becoming final.6 Lowman’ s motion was filed in a timely fashion, thus the bar of Rule
6l(i)(l) does not apply to the motion. As this is Lowman’s initial motion for
postconviction relief, the bar of Rule 6l(i)(2), which prevents consideration of any
claim not previously asserted in a postconviction motion, does not apply either.
Grounds for relief not asserted in the proceedings leading to judgment of
conviction are thereafter barred unless the movant demonstrates: (l) cause for relief
from the procedural default; and (2) prejudice from a violation of the movant's ri ghts.7
The bars to relief are inapplicable to a jurisdictional challenge or “to a colorable claim
that there was a miscarriage of justice because of a constitutional violation that
undermined the fundamental legality, reliability, integrity or fairness of the
proceedings leading to the judgment of conviction.”8
Each of Lowman’ s grounds for relief with the exception of numbers eight, nine
and twelve, are premised on allegations of ineffective assistance of counsel.
Therefore, Lowman has alleged sufficient cause for not having asserted these grounds
for relief at trial and on direct appeal.
Lowman’s first and ninth grounds for relief are simply restatements of the
argument he previously raised in his direct appeal. Superior Court Criminal Rule
6l(i)(4) bars any ground for relief that was formerly adjudicated unless
6 super. Ct. Crim. R. 61(i)(1).
7 Super. Ct. Crim. R. 6l(i)(3).
8 Super. Ct. Crim. R. 6l(i)(5).
10
State v. Aaron O. Lowman
ID No. 1305008595
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reconsideration of the claim is warranted in the interest of justice.9 Lowman raised
these claims before and the Delaware Supreme Court found them meritless Lowman
has made no attempt to argue why reconsideration of this claim is warranted in the
interest of justice. The interest of justice exception of Rule 61(i)(4) has been
narrowly defined to require that the movant show that “subsequent legal
developments have revealed that the trial court lacked the authority to convict or
punish” him.10 Lowman has made no attempt to demonstrate why these claims should
be revisited. This Court is not required to reconsider Lowman’s claim simply because
it is “refined or restated.”ll For this reason, this ground for relief should be dismissed
as previously adjudicated under Rule 61(i)(4).
Lowman’s eighth and twelfth claims were not previously raised and he has
given no reason for the failure to have raised them earlier. They are therefore clearly
barred by Superior Court Criminal Rule 61(i)(3) for failure to demonstrate cause and
prejudice for his failure to have raised them earlier.
Lowman’s ineffective assistance of counsel claims are not subject to the
procedural default rule, in part because the Delaware Supreme Court will not
generally hear such claims for the first time on direct appeal. For this reason, many
defendants, including Lowman, allege ineffective assistance of counsel in order to
9 Super. Ct. Crim. R. 61(i)(4).
10 Ma.xion v. State, 686 A.2d 148, 150 (Del. 1996) (quoting Flamer v. State, 585 A.2d
726, 746 (Del. 1990)).
11 Riley v. State, 585 A.2d 719, 721 (Del. 1990).
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State v. Aaron O. Lowman
ID No. 1305008595
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overcome the procedural default. “However, this path creates confusion if the
defendant does not understand that the test for ineffective assistance of counsel and
the test for cause and prejudice are distinct, albeit similar, standards.”12 The United
States Supreme Court has held that:
[i]f the procedural default is the result of ineffective
assistance of counsel, the Sixth Amendment itself requires
that the responsibility for the default be imputed to the
State, which may not ‘conduc[t] trials at which persons
who face incarceration must defend themselves without
adequate legal assistance;’ [i]neffective assistance of
counsel then is cause for a procedural default.13
A movant who interprets the final sentence of the quoted passage to mean that he can
simply assert ineffectiveness and thereby meet the cause requirement will miss the
mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant
must engage in the two part analysis enunciated in Strickland v. Washington” and
adopted by the Delaware Supreme Court in Albury v. State.15
The Strickland test requires the movant show that counsel’s errors were so
grievous that his performance fell below an objective standard of reasonableness16
12 State v. Gattis, 1995 WL 790961 (Del. Super.).
11 Murmy v. Cam'er, 477 U.s. 478, 488 (1986).
14 466 U.s. 668 (1984).
15 551 A.zd 53, 58 (Del. 1988).
16 Szrickland, 466 U.s. ar 687; see Dawson v. Szaze, 673 A.2d 1186, 1190 (Del. 1996).
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State v. Aaron O. Lowman
ID No. 1305008595
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Second, under Strickland the movant must show there is a reasonable degree of
probability that but for counsel’s unprofessional error the outcome of the proceedings
would have been different, that is, actual prejudice.17 In setting forth a claim of
ineffective assistance of counsel, a defendant must make and substantiate concrete
allegations of actual prejudice or risk summary dismissal.18
Generally, a claim for ineffective assistance of counsel fails unless both prongs
of the test have been established.19 However, the showing of prejudice is so central
to this claim that the Strickland court stated "[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed."20 In other words, if the Court finds
that there is no possibility of prejudice even if a defendant's allegations regarding
counsel’s representation were true, the Court may dispose of the claim on this basis
alone.21 Furthermore, Lowman must rebut a "strong presumption" that Trial
Counsel’s representation fell within the "wide range of reasonable professional
assistance," and this Court must eliminate from its consideration the "distorting
11 Id.18 See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State,
1995 WL 466465 at *1 (Del. Supr.)).
19 Szrickland, 466 U.s. at 687.
20 1d.at697.
11 State v. Gam's, 1995 wL 790961 (Del. super.).
13
State v. Aaron O. Lowman
ID No. 1305008595
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effects of hindsight when viewing that representation."22
Turning briefly to Lowman’s specific claims he makes a number of allegations
that Trial Counsel acted ineffectively at trial, including claims that he did not
adequately investigate the case and prepare it for trial.
In his second claim, Lowman contends that Trial Counsel was ineffective
because he should have filed a Motion to Suppress Lowman’s incriminating
statements After waiving his right to counsel, Mr. Lowman argues that counsel
should have suppressed statements he made at the beginning of the recorded
interview with Detective Long,
On June 14, 2013, Lowman was interviewed by Detective Long at J ames T.
Vaughn Correctional Center.23 Detective Long testified that Lowman was provided
with Miranda warnings, that he understood those rights and elected to proceed
l.24 The interview on June 14, 2013 was recorded on a mini cassette
without counse
recorder, but unfortunately is inaudible.25 However, Detective Long’s police report
clearly states that Lowman was read his Miranda rights, understood those rights and
voluntarily agreed to answer the detective’s questions without the assistance of
counsel. There is nothing in the record to suggest that the statements made by
Lowman were involuntarily or obtained in violation of his rights This claim is
22 Stricklana', 466 U.S. at 689; Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
23 State v. Lowman, Del. Super., ID No. 1305008595 (Oct. 21, 2014), tr. at B-97.
24 Id.25 Id. at B-98.
14
State v. Aaron O. Lowman
ID No. 1305008595
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without merit.
ln his third claim, Lowman argues ineffective assistance of counsel for failing
to object to “the Detective’s created animated alleged testimony” of Lowman’s
confession. Lowman is attempting to argue that because the recorded interview is
inaudible, counsel was ineffective by allowing the content of the recording to be
introduced to the jury. However, the recording, despite its quality, is still available.
This is distinguishable from a case where the recording has been destroyed or lost;
rather, this is a case where technology malfunctioned.26 The State even attempted to
enhance the audio recording. Furthermore, Detective Long supplemented the
recorded interview with a written police report.27 There is no evidentiary objection
to prevent the investigating officer from testifying as to the statements made by
Lowman during the course of a voluntary interview. This claim is without merit.
ln his fourth ground for relief, Lowman claims ineffective assistance of counsel
for failure to compel Detective testimony about statements made by co-defendant
Marshay Johnson. Lowman alleges that during her interview with Detective Long,
Ms. Johnson admitted that the weapon found in the vehicle was hers However,
Johnson did not admit that the gun located in the vehicle was in her possession or that
26 Compare Morris v. State, 153 A.3d 721 (Del. 2016)(holding that the Superior Court
correctly found that the State did not lose or destroy evidence but rather that the tape was available
but did not have sound) and Deberry v. State, 457 A.2d 744 (Del. 1983) (holding that the failure
to produce or account for evidence was irreversible error).
27 State v. Lowman, Del. Super., ID No. 1305008595 (Oct. 21, 2014), tr. at B-98.
15
State v. Aaron O. Lowman
ID No. 1305008595
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she owned the gun.28 ln fact, she vehemently denied ownership of the firearm. But
rather she suggested it was Lowman’s because she knew him to carry a gun.29 ln his
affidavit, Trial Counsel explains that he strategically elected not to call Johnson as
a witness or question her knowledge30
ln his fifth claim, Lowman argues ineffective assistance of counsel for failure
to object to Prosecution misrepresentation of evidence where the State said there
would be a statement played which ultimately was not played at trial. This claim is
entirely without merit. ln its opening statement, the State never mentioned that any
statements would be played at any time.31
In Lowman’s sixth claim, he contends that Trial Counsel was ineffective for
failing to raise all of his claims thus forcing him to waive his Constitutional
Arguments. On January 20, 2015, Trial Counsel filed a timely Notice of Appeal to
the Delaware Supreme Court. On March 5, 2015, Trial Counsel filed the Opening
Brief on behalf of Lowman. On March 26, 2015, the State of Delaware filed the
State’s Answering Brief. On April 10, 201 5, Trial Counsel filed a Reply Brief further
explaining the prejudicial effect on Lowman. On August 28, 2015, the Delaware
211 State v. Lowman, Del. super. ID No. 1305008595, D.r. 51 at A- 267, 270, 277, 278.
19 Id. at A- 271.
111 windett Aff. 11 5, June 6, 2017,
31 Lowman, Del. Super., ID No. 1305008595 (Oct. 20, 2014), tr. at 16-19.
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State v. Aaron O. Lowman
ID No. 1305008595
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Supreme Court ordered that the judgment of the Superior Court was affirmed.32 Trial
counsel focused on what he considered to be the only “meritorious” argument to raise
on appeal. Sirnply because counsel did not raise every conceivable claim does not
warrant counsel ineffective This claim is without merit.
Lowman’s seventh claim argues ineffective counsel for failing to request a
missing evidence instruction to the jury. On cross-examination, Detective Long
testified that he took hand written notes while conducting the interview with
Lowman.33 Upon learning that Officer’s notes were shredded, Trial Counsel made
a second motion for mistrial on the grounds that the breach its duty by failing to
preserve evidence.34 The Court entertained giving a Deberry instruction35 and
allowed the parties to further research the issue while on recess It was the State’s
position that shredding the hand written notes after incorporating the information into
his final police report was neither negligent nor improper.36 Upon further research,
Trial Counsel discovered Supreme Court precedent that was factually on point and
withdrew the motion.37
ln his eighth claim for ineffective assistance of counsel, Lowman contends that
32 State v. Lowman, 2015 wL 5120818 (De1. supr.).
33 Lowman, Del. Super., ID No. 1305008595 (Oct. 21, 2014), tr. at B-113, 114.
34 State v. Lowman, Del. Super., ID No. 1305008595 (Oct. 22, 2014), tr. at C-2.
35 Lowman, Del. Super., ID No. 1305008595 (Oct. 21, 2014), tr. at B-146 to B-148.
36 ld.
37 Lowman, Del. Super., ID No. 1305008595 (Oct. 22, 2014), tr. at C-2.
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State v. Aaron O. Lowman
ID No. 1305008595
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Court abused its discretion by not giving a missing evidence instruction to the jury.
Lowman claims that since the audio recording was inaudible, the officer’s hand
written notes offered exculpatory evidence which prevented the defense from
properly cross examining the officer. However, Detective Long provided a final
written report which included the information provided in his notes which was
available to both the State and the Defense.38 Additionally, the Supreme Court has
held theat preliminary notes that are made for the purpose of transferring the data to
a final report may be permissibly destroyed if it is done in good faith and in
accordance with normal practices39 Here, the destruction of Detective Long’s
preliminary notes does not constitute an impermissible destruction of evidence nor
has it deprived Lowman of any rights as to warrant a mistrial. Lowman has offered
nothing but mere speculation that the hand written notes were exculpatory evidence.
There is no reasonable probability that, had the defense had access to the notes, a
different result was likely to occur.
In his ninth claim for ineffective assistance of counsel, Lowman argues that
counsel was ineffective because the trial judge abused his discretion by denying a
motion for mistrial following Detective Long’s statement regarding how Lowman
acquired the firearm in relation to drug dealing. This argument is part and parcel to
Lowman’s first claim, which was addressed and resolved during the direct appeal.
38 Lowman, Del. Super., ID No. 1305008595 (Oct. 21, 2014), tr. at B-98.
39 Killian v. United States, 82 S. Ct. 302 (1961); Califomia v. Trombetta, 104 S. Ct.
2528 (1984).
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State v. Aaron O. Lowman
ID No. 1305008595
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ln his tenth claim, Lowman contends that Trial Counsel was ineffective for
stipulating that he was a person prohibited from owning or possessing a firearm or
ammunition. On October 20, 2014, Trial Counsel presented the signed stipulation
agreement to the court with the intention of avoiding Lowman’ s prior conviction from
being put on the record.40 Additionally, Trial Counsel informed the court that the
“indictment would be sanitized as to remove any reference to any prior convictions
as well.”41 ln his affidavit, Trial Counsel explains that had Lowman not stipulated to
being a person prohibited, the jury would have heard the evidence of his prior drug
trafficking conviction in a case alleging drug dealing and firearm possession.42 Trial
counsel, and Lowman, made the strategic decision to stipulate to person prohibited
status
In his eleventh claim, Lowman complains that Trial Counsel failed to file a
motion to suppress evidence and a statement. There was no basis to suppress
evidence since officers who knew Lowman and knew he was wanted pursued him,
ending in a rollover collision. When the officers righted and searched the vehicle, the
evidence introduced at trial was found. This claim is without merit.
Lowman’ s twelfth claim relates to jury instructions No objections were raised
during trial or after the instructions were read to the jury because the jury instructions
tracked the statutory language There was no basis to object to the jury instructions,
40 Lowman, Del. Super., ID No. 1305008595 (Oct. 20, 2014), tr. at A-3.
41 ld.
42 Willd€tt Aff. il 10, June 6, 2017,
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State v. Aaron O. Lowman
ID No. 1305008595
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accordingly, this claim is without merit.
Following a complete review of the record in this matter, it is abundantly clear
that Lowman has failed to allege any facts sufficient to substantiate his claim that his
attorney was ineffective I find Trial Counsel’s affidavit and Appointed Counsel’s
motion to withdraw, in conjunction with the record, more credible than Lowman’s
self-serving claims that his Trial Counsel’ s representation was ineffective Lowman’s
Trial Counsel clearly denies the allegations Furthermore, Appointed Counsel
thoroughly reviewed the record in this case and concluded that none of Lowman’s
“ claims were meritorious and that no other meritorious claims could be found.
CONCLUSION
After reviewing the record in this case, it is clear that Lowman has failed to
avoid the procedural bars of Superior Court Criminal Rule 61(i). A review of his
Trial Counsel’s affidavit, Appointed Counsel’s motion to withdraw and the record
clearly shows that counsel represented Lowman in a competent fashion and was not
ineffective Additionally, Lowman has failed to demonstrate any concrete prejudice
Consequently, l recommend that Lowman’s motion be denied as procedurally barred
by Rule 61(i)(3) for failure to prove cause and prejudice and previously adjudicated
under Superior Court Criminal Rule 61(i)(4).
/s/ Andrea M. Freud
Commissioner
AMF/dsc
20