State v. Lloyd ( 2019 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE
Vv. I.D. No. 1410016737
ANDREW LLOYD
New \weeee/ ene? nee eee nee See”
Defendant.
Submitted: April 4, 2019
Decided: May 20, 2019
REPORT AND RECOMMENDATION THAT DEFENDANT’S
MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED
Mark Denney, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State of Delaware.
Julianne E. Murray, Esquire, Murray, Phillips & Gay, Attorney for Andrew Lloyd.
MAYER, Commissioner
This 20" day of May, 2019, upon consideration of Defendant’s Motion for
Postconviction Relief, the following is my Report and Recommendation:
BACKGROUND, FACTS AND PROCEDURAL HISTORY
In January of 2014, the Wilmington Police Department and Federal Bureau of
Investigation began investigating Andrew Lloyd (“Defendant”) with respect to
suspected illegal dealing of heroin.' Independently, the Delaware State Police and
U.S. Drug Enforcement Administration (“DEA”) were also investigating Defendant
for suspicious activities. When law enforcements’ paths crossed, they agreed to
work jointly to advance their consistent interests.
During the course of the investigation, law enforcement came to understand
that Defendant was the leader of a large-scale drug operation. It was also believed
that he was moving an average of 1,000-1,600 bundles of heroin per week.
Defendant primarily used others to store, package and distribute heroin for him and
they used false names to hide the identity of their associates and the location of
homes.
The New Castle County Grand Jury eventually issued a final 163-count
indictment that involved over forty (40) co-defendants and specifically charged
Defendant with numerous felony offenses.
' The facts set forth herein are primarily taken from the Delaware Supreme Court’s
decision on appeal found at Lloyd v. State, 152 A.3d 1266 (Del. 2016).
2
On November 26, 2014, Peter Veith, Esquire (“Trial Counsel”) was appointed
to represent Defendant. In 2015, Defendant sent several letters to the Court
advocating for suppression of certain wiretap evidence.” Pursuant to Superior Court
Criminal Rule 47, the trial judge forwarded the letters to Trial Counsel.? In doing
so, the trial judge also addressed several cases Defendant believed supported his
position. The October 6, 2015 letter (hereinafter the “2015 Letter”) states in part:
As a courtesy and to help you with your discussion,
attached are copies of the trial and appellate courts’
decisions in U.S. v. Yanes.*. Defendant highlights a
seemingly favorable snippet from the trial court’s decision
in Yanes concerning the warrantless, post-arrest search of
a bag. Of course, Yanes has nothing to do with collecting
evidence during an investigation, much less a wiretap,
which is what this case concerns. While an arrest, like the
arrests in Yanes, has to be supported by probable cause to
believe a crime has been committed,’ a wiretap is issued
on probable cause to believe, among other justifications,
that a crime is about to be committed.® In other words, a
wiretap only needs reason to believe a crime is being
planned.
* Trial Counsel also assisted Defendant with filing a direct appeal to the Delaware
Supreme Court. Once again, Defendant circumvented his counsel and filed letters
with the Supreme Court advocating for consideration of the issues relating to
suppression of the wiretap. The Supreme Court sent the letters to Trial Counsel to
address but it does not appear as if this issue was presented to the court.
3 DI. # 35.
4 United States v. Yanes, 671 F. Supp. 927 (D. Conn. 1987); United States v. Gorski,
852 F.2d 692 (2d Cir. 1988).
> Id.
6 See Clifford S. Fishman & Anne T. McKenna, Wiretapping and Eavesdropping 8-
67 (Thomson West eds., 2"4 ed. 2004).
Perhaps you can explain to your client why Yanes is not
helpful to him. You might also explain the significance of
the police surveillance here. If he will not take your word
for it, let me know. But, I expect you to reason with your
client first.
Meanwhile, it does not appear that your client realizes how
serious his predicament is and how it gets worse with each
co-defendant’s guilty plea. As a reality check, I will ask
the State to present its current case in a nutshell at the final
case review, with emphasis on what is left if the wiretap,
somehow, were suppressed. My understanding is that the
State’s position is qualitatively different now, compared to
when your client was arrested. ’
In the meantime, due to safety concerns with witnesses, Defendant was housed at
Sussex Correctional Institution, approximately a 2-hour drive from New Castle
County where Trial Counsel was located. Trial Counsel filed a Motion to Transfer
Defendant because although he had made in person visits and conducted video-
conferencing, he needed Defendant to be housed locally during trial to avoid the
delays from transport and to allow more time for preparation of the case.
On October 7, 2015, the Court held a Final Case Review hearing.® The trial
judge went through great pains to ensure Defendant understood the pending charges,
the State’s evidence and the potential penalties if convicted. The State summarized
its evidence (separate and apart from the wiretap) as including: (1) the expected
7 DI. #35 (emphasis in original).
8 See Transcript of Final Case Review, hereinafter referred to as “FCR Trans.”
4
testimony of numerous co-defendants who would acknowledge the racketeering
enterprise with Defendant or pled to drug conspiracy with Defendant; (2) affirmative
statements that point with specificity to the history and methodology of Defendant’s
drug trafficking operation; (3) testimony that Defendant directed shootings, heroin
trades, and trafficking from Philadelphia to Wilmington; (4) police officers
testifying to observing drug deals with Defendant over time; and (5) video
surveillance of illegal activity.’
On that same date, Defendant rejected a plea offer. Through that offer, the
State recognized that Defendant faced a minimum sentence of 10 years of Level V
incarceration, and the State agreed not to seek more than 25 years at the time of
sentencing.
On October 20, 2015, the case proceeded to an eight-day joint trial for
Defendant and a co-defendant. The State presented over fifty (50) witnesses
including the testimony of seventeen (17) co-defendants. As part of its case, the
State also introduced over one-hundred and seventy (170) pieces of evidence,
including hours of recorded wiretap phone calls. The State sought to prove that
Defendant was the head of a criminal enterprise that involved drug dealing and
° FCR Trans. at pgs. 5-7, 9, 17-18.
violence. Defendant was convicted of all charges. Defendant filed an appeal and
his conviction was affirmed.!°
On February 21, 2017, Defendant filed a Motion for Postconviction Relief.
Counsel was appointed and given leave to amend. An Amended Motion for
Postconviction Relief was filed (the “Motion’”), presenting two grounds for relief:
(1) Trial Counsel was ineffective because he failed to substantively communicate
with Defendant prior to trial; and (2) Trial Counsel was ineffective because he failed
to move to suppress the wiretap evidence.'! Trial Counsel submitted an Affidavit
and attests that he regularly communicated with Defendant to discuss his case, and
because he believed a motion to suppress lacked merit, he would not file a frivolous
motion.!2 The State submitted a Response.'? The State believes Trial Counsel “put
forth a strong defense despite overwhelming evidence” and if a motion to suppress
had been filed, it would have failed. Defendant submitted a Reply Brief'* creating
a factual dispute regarding the extent of communications and again attacking the
admissibility of the wiretap evidence. An evidentiary hearing was held on April 4,
10 Lloyd v. State, 152 A.3d 1266 (Del. 2016).
1 DT. # 104.
2 DI# 106.
3 DI. # 108.
4 DI # 109.
2019 (the “Hearing”).!° After having considered the entire record in this matter, the
briefing from the parties, and the evidentiary record,!* I recommend that the Motion
be denied.
LEGAL ANALYSIS OF CLAIMS
Before considering the merits of the claims, the Court must first determine
whether there are any procedural bars to the Motion.'’ This is Defendant’s first
motion for post-conviction relief and it was timely filed.’ Pursuant to Super. Ct.
Crim. R. 61(i)(3) and (4), any ground for relief that was not previously raised is
deemed waived, and any claims that were formerly adjudicated, whether in the
proceedings leading to the judgment of conviction, in an appeal, in a postconviction
15 At the Hearing, the Court found that Defendant waived any attorney-client
privilege or work product protection with regard to communications or materials
specifically relevant to his claims. See RESTATEMENT (THIRD) OF THE LAW
GOVERNING LAWYERS § 80(1)(b) & cmt. C (2000) (“A client who contends that a
lawyer’s assistance was defective waives the privilege with respect to
communications relevant to that contention. Waiver affords to interested parties’
fair opportunity to establish the facts underlying the claim.”); Wal-Mart Stores, Inc.
v. AIG Life Ins. Co., 2008 WL 498294 (Del. Super. Jan. 14, 2008), at *4 (waiver of
privilege when client puts attorney-client relationship at-issue).
16 References herein to the Hearing exhibits will be made by citing to the appendix
identification given at the time of the Hearing, e.g.““A__.” References to the Hearing
Transcript will be made by citing “Hearing Trans. at.”
17 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
18 See Super. Ct. Crim. R. 61(i)(1) (motion must be filed within one year of when
conviction becomes final); Super. Ct. Crim. R. 61(m)(2) (If the defendant files a
direct appeal, the judgment of conviction becomes final when the mandate is issued).
proceeding, or in a federal habeas corpus proceeding, are thereafter barred.
However, ineffective assistance of counsel claims cannot be raised at any earlier
stage in the proceedings and are properly presented by way of a motion for
postconviction relief.'?
In order to prevail on an ineffective assistance of counsel claim, a defendant
must show that his counsel’s representation fell below an objective standard of
reasonableness and the deficiencies in counsel’s representation caused the defendant
actual prejudice.2? The court must be persuaded that the alleged errors were so
serious that his counsel was not functioning as the “counsel” guaranteed to the
defendant by the Sixth Amendment.”! Further, in order to prevail on an ineffective
assistance of counsel claim, a defendant must show that but for the errors, there is a
reasonable probability that the outcome of the proceedings would have been
different.22 The test is not whether the Defendant can demonstrate that the error had
some “conceivable effect” on the outcome but rather whether the error undermined
19 Whittle v. State, 2016 WL 2585904, at *3 (Del. Apr. 28, 2016); State v. Evan-
Mayes, 2016 WL 4502303, at *2 (Del. Super. Aug. 25, 2016).
20 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hitchens v. State,
757 A.2d 1278 (Del. 2000).
21 State v. Finn, 2012 WL 1980566, at *4 (Del. Super., May 23, 2012).
22 Strickland, 466 U.S. at 687-88, 694; Hitchens v. State, 757 A.2d 1278 (Del.
2000).
the reliability of the result of the proceeding.*? Defendant must overcome a strong
presumption that counsel’s conduct was reasonably professional under the
circumstances.”4 Mere allegations of ineffectiveness or conclusory statements will
not suffice; instead, a defendant must make and substantiate concrete allegations of
actual prejudice.”
LEGAL ANALYSIS OF CLAIMS
L Defendant’s First Claim for Relief Should be Denied
Defendant first argues that his constitutional rights were violated because
Trial Counsel failed to substantively communicate with him prior to the trial. At the
Hearing, this was flushed out more and although there is a sufficient record of letters,
phone calls, video conversations, and in person visits, Defendant claims Trial
Counsel did not apprise him of certain significant evidence to enable him to make a
knowing and intelligent decision to plea or go to trial.
Defendant’s complaints can be summarized in three categories: (i) a belief
that the wire-tap evidence should have been suppressed; (ii) his lack of knowledge
of the witness statements and testimony that would be elicited at trial; and (iit) his
contention that he would have accepted a more favorable plea if he had been better
23 Strickland, 466 U.S. at 693.
4 State v. Wright, 653 A.2d 288, 293-94 (Del. Super. 1994) (citations omitted).
25 Strickland, 466 U.S. at 687-88, 694; Monroe v. State, 2015 WL 1407856, at *5
(Del. Mar. 25, 2015) (citing Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996)).
informed. For the reasons set forth in Section II below, I do not believe Trial
Counsel erred in failing to move to suppress the wire-tap evidence. The other two
complaints will now be taken in turn.
A. Trial Counsel Substantively Communicated with Defendant
A review of the record, as well as the testimony and exhibits presented at the
Hearing demonstrates that Trial Counsel was first introduced to Defendant in
November of 2014. From the date of appointment until trial commenced, the record
reflects approximately ten (10) in-person meetings, telephone conferences or video
conferences.2© Defendant acknowledges that Trial Counsel sent him eleven (11)
letters prior to trial, but claims the content was brief or non-substantive. Defendant
also puts great emphasis on the twenty-one (21) letters that he wrote to Trial Counsel
that may or may not have received full attention.
I disagree with Defendant’s interpretation of the exchange of information.
The letters demonstrate efforts by Trial Counsel to provide Defendant with copies
of the re-indictment, wiretap intercepts from October 10, 2014 through October 24,
2014, two separate phone wiretap intercepts from August 29, 2014 to November 18,
26 According to Trial Counsel’s Affidavit and testimony, Defendant may have also
accessed a cell phone while incarcerated and placed calls to counsel with that device.
Trial Counsel advised Defendant that doing so could subject him to additional
criminal charges. See Hearing Trans. at pg. 61. Further, not all telephone calls were
depicted in the time records. If the call was under 15 minutes, Trial Counsel would
not bill for the time. Hearing Trans. at pg. 73.
10
2014 and October 21, 2014 to November 24, 2014, case law regarding jury
instructions, Defendant’s transcribed statement, multiple plea offers, DEA reports,
the State’s supplemental discovery including transcripts from co-defendant
suppression hearings, and jury instructions. Trial Counsel also engaged Defendant
in discussions relating to the seriousness of the felony drug offenses, the significant
minimum/mandatory time, possible defenses, potential defense witnesses, plea
offers and possible sentences, the assistance of a private investigator, the re-
indictment with an explanation of charges, and the relevancy of the wiretap
intercepts.”’
Effective representation by trial counsel requires “adequate investigation and
pre-trial preparation.””® Trial Counsel was well versed in the facts and legal issues
° And, despite Defendant’s accusations, Trial
surrounding Defendant’s case.”
Counsel was far from idle. The time records reflect Trial Counsel expended more
than 400 hours reviewing potential evidence, plea offers and legal issues. Trial
27 See Exhibits A48-A71.
28 Gattis v. State, 697 A.2d 1174, 1184 (Del. 1997), citing Riley v. State, 545 A.2d
719, 727 (Del. 1990) (quoting Crisp v. Duckworth, 743 F.2d 580, 583 (7" Cir.
1984)).
29 This case is easily distinguishable from Cronic because Trial Counsel did not
“entirely fail[] to subject the prosecution’s case to meaningful adversarial testing.”
Florida v. Nixon, 543 U.S. 175, 190 citing United States v. Cronic, 466 U.S. 648
(1984); Moody v. State, No. 570, 2017 (Del. Sept. 24, 2018) (distinguishing Cronic
when allegations are limited to counsel’s failure to file a motion).
11
Counsel made several attempts to convince Defendant that the evidence was
weighted against him, and what the co-defendants were saying in cooperating with
the State.°° For example, in September of 2015, Trial Counsel forwarded a copy of
Defendant’s transcribed statement and advised:
While you do not find it to be problematic I do. Based
upon your statement and that of the cooperating co-
defendants, the State has a strong racketeering case.
Additionally, your statement concerning dealing with
defendant Roscoe are problematic and can result in you
being convicted of those charges...*!
Defendant’s view was that no one would testify against him, and he preferred to
focus on attacking the wiretap evidence.*? Defendant’s choice to ignore critical
evidence and Trial Counsel’s advice, cannot now support a claim of ineffective
assistance of counsel.
B. Defendant Was Informed of the Risks of Trial Prior to Rejecting the Plea
With respect to the issue of the plea negotiations, the record reflects
Defendant’s rejection of an offer on October 7, 2015, after the Final Case Review
Hearing and after the Court directed the State to summarize its case on the record.
The Court’s intent was to ensure Defendant was fully aware of the State’s case,
separate and apart from the wiretap evidence. The State complied and at the
30 See Hearing Trans. at pgs. 20-21, 22, 24-25, 38, 56.
31 See A54.
32 See Hearing Trans. at pgs. 20-21, 38, 57.
12
conclusion of the hearing, the Court addressed Defendant directly. Defendant was
advised that he was in a difficult situation. Despite the lengthy recitation of witness
testimony and evidence, and the Court’s suggestion, Defendant rejected the plea
offer.
At the Hearing, the parties agreed that another plea was offered that would
have included a recommendation of 8 to 22 years at Level V.*?_ This offer was also
made after the Final Case Review Hearing, and again, Defendant was fully apprised
of the weight of the evidence when he elected to reject that plea.*4
Although Defendant claims he would have accepted a more favorable plea if
he had been better informed, he has repeatedly stated throughout his letters to Trial
Counsel and the Court, as well as at the Hearing, that no one knew his case as well
as he did. Defendant’s letters reflect a detailed understanding of potential witness
testimony, statements, evidence and legal issues.*° For example:
e Defendant’s sophistication is evident from his preparation of legal
arguments relating to “corpus delicti,” writs of mandamus, motions to
compel, motions to suppress, etc.
e Defendant independently researched legal authority in support of his
case, cited that authority, and suggested a “Flowers” motion or
“Franks” hearing.
33 Hearing Trans. at pg. 82.
34 Defendant testified that the offer was made “[a]round trial prep, like three days
before trial, something around there.” Hearing Trans. at pgs. 82-83. The State
agreed that the offer was relayed after final case review and before trial. Hearing
Trans. at pgs. 120-121.
35 See A72-A141.
13
e Defendant specifically cited the Superior Court Rules that may assist
with his defense.
e Defendant received, reviewed and analyzed the evidence provided to
him including the wiretap transcripts, affidavits in support of
application for interception of wire communications, and affidavits of
probable cause.
e Defendant discussed certain case law with his Trial Counsel.
Trial Counsel’s time records show that in September of 2015, he met with the client
»36 However, at various points in time,
and “review[ed] co-def. statements.
Defendant indicated he was not interested in reading certain transcripts, or
discussing a plea, rather he wanted to prepare for trial.*”
Moreover, although Defendant argues he was unaware of “key” witness
statements and the content of the testimony, the State’s summary is more
convincing: (1) Defendant had seven (7) months before trial to review the Jarrell
Brown transcripts; (2) Steven Roscoe’s critical testimony was referenced in Trial
Counsel’s letters; (3) Demetrius Brown was a lengthy proffer, and there are two
separate dates of Trial Counsel reviewing the proffer and the statement was given to
the Defendant before the Final Case Review Hearing; and (4) both Brian Miller’s
36 See Al5.
37 See e.g. A80, A89.
14
and Collins’s testimony were referenced/previewed at the Final Case Review
Hearing.*®
In light of the above, it is evident that Trial Counsel, with the Court’s
assistance, went to great lengths to afford Defendant an opportunity to accept the
overwhelming amount of evidence he was facing. Defendant elected to disregard
that advice. Trial Counsel will not be deemed ineffective when the record
demonstrates that the choice to not enter into a plea was wholly within Defendant’s
knowing and intelligent decision-making.
Il. Trial Counsel Did Not Err in Neglecting to File a Motion to Suppress
Defendant next argues that Trial Counsel was ineffective for failing to file a
motion to suppress and focuses on the bases to undermine the affidavit and resulting
evidence. Essentially, Defendant argues that the State could not show “necessity”
for each wiretap obtained. An application for a wiretap will be granted if:
1) there is probable cause to believe that a person has committed, is
committing, or is about to commit an enumerated crime; 2) there is
probable cause to believe that communications concerning the
enumerated offense will be obtained through the wire intercept; 3)
normal investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if attempted or would be
too dangerous; and 4) there is probable cause to believe that the
telephone number from which communications are being intercepted
38 See Hearing Trans. at pgs. 124-128.
15
are being used in the commission of an enumerated offense or are used
by an individual engaged in criminal activity.”
In moving to suppress the resulting evidence, a defendant must prove by a
preponderance of the evidence that given all of the circumstances set forth in the
affidavit, the court erred in granting the application.*°
However, a judge’s
determination of probable cause is to be paid great deference by any reviewing court.
Defendant argues that the wiretap application for his phone line mostly
duplicated the application for Brown’s wiretap or was conclusory in nature. As such,
Defendant believes the application failed to satisfy the requirement of necessity.
Defendant then argues that he was prejudiced because most of the evidence elicited
at trial resulted from the illegal wiretaps.
Although Defendant attacks the wiretap application and resulting evidence,
he cannot directly argue the inadmissibility of this evidence because any such claim
is deemed waived for his failure to raise it during the trial proceedings or on appeal.*!
Alternatively, Defendant argues Trial Counsel was ineffective for failing to file a
motion to suppress this same evidence.
39 State v. Felton, 2016 WL 3568523, at *12 (Del. Super. June 22, 2016), citing 11
Del. C. §2407.
40 Td.
41 See Super. Ct. Crim. R. 61(i)(3) barring any ground for relief that was not asserted
in the proceedings leading to the judgment of conviction unless the movant shows
cause for relief and prejudice from a violation of his rights.
16
At the Hearing, the parties were asked to address the 2015 Letter whereby the
trial judge analyzed and responded to Defendant’s suppression arguments.
Defendant could not identify any legal error in the trial judge’s decision-making.
Therefore, the ultimate question here is whether Trial Counsel’s failure to file a
motion to suppress, in consideration of the trial judge’s thoughts on the matter, was
objectively reasonable. For several reasons, the answer is “yes.”
Trial Counsel’s time records show that he researched the suppression issues
and considered whether a motion should be filed.’” Ultimately, he decided any such
motion would be frivolous and he informed Defendant that there was no merit to
filing a motion to suppress." It appears the trial judge agreed. Great weight and
deference are given to tactical decisions by the trial attorney and counsel cannot be
deemed ineffective for failing to pursue motions that lack merit.“ In fact, Trial
42 See All (1.25 hours for research relating to DEA informant); Al4 (3.75 hours
reviewing wiretap warrants and preparation for consult) (5.5 hours’ video consult
[with client] and research warrants/statutes).
43 Hearing Trans. at pgs. 39-40. The State also points out that forty-six (46) co-
defendants who were impacted by the wiretaps did not file a motion to suppress.
Hearing Trans. at pg. 136.
44 State v. Miller, 2013 WL 871320, at *4 (Del. Super., Feb. 26, 2013). See also,
Florida v. Nixon, 543 U.S. 175, 187 (counsel has duty to consult with client
regarding important decisions, but is not required to obtain defendant’s consent to
every tactical decision); citing Strickland, 466 U.S., at 688; Taylor v. Illinois, 484
U.S. 400, 417-418 (1988).
17
Counsel had an obligation not to file frivolous motions. Defendant, having been
unable to successfully contradict the reasoning set forth in the 2015 Letter, is now
unable to carry his burden that Trial Counsel’s actions were in error.*®
Further, an independent review of the legal issues presented demonstrates that
it is unlikely a motion to suppress would have been successful. According to Trial
Counsel, Defendant was very conscious of police surveillance and would use
counter-surveillance measures, such as using a rental car and driving erratically, to
avoid detection. Although there were two separate, but parallel, investigations, law
enforcement were unable to build a strong case against Defendant and when his
voice was recognized on a call with Brown, they applied for and received a wiretap
of three separate phones related to Lloyd. The State summarized the investigation
techniques that were unsuccessful and the profiles of the confidential informants.
Trial Counsel agreed that the affidavit “articulated that they weren’t able to
get close to him,” the normal investigative techniques that were not fruitful, and that
the affidavit referenced the confidential informants as past proven and reliable.*”
45 State v. McGlotten, 2011 WL 987534, at * 5 (Del. Super. Mar 21, 2011), citing
State v. Pandiscio, 1995 WL 339028, * 5 (Del. Super. May 17, 1995), aff'd, 1995
WL 715627 (Del. Oct. 25, 1995).
46 The trial judge’s letter was not a formal order or opinion and therefore the claim
was not formerly adjudicated and barred by Super. Ct. Crim. R. 61(i)(4). However,
it provided the parties with insight into the judge’s impression of the issue and that
the likelihood of success was poor.
47 Hearing Trans. at pgs. 41, 48-49, 51.
18
The Application for Interception of Wire Communications was eighty (80) pages in
length and included: (a) an explanation of the various individuals, their relationship
to each other and criminal history; (b) specific conversations between Defendant and
others that purportedly discussed illegal drug dealing activity; (c) profiles of the
confidential informants and that one had personal knowledge of Defendant and
Brown facilitating heroin transactions and assisted law enforcement with the
purchase of heroin directly from Brown; (d) a summary of the detective’s two year
history included fifty (50) encounters with Defendant; (e) an explanation of why and
how Defendant switched phones; and (f) an explanation of why traditional
investigative procedures have been tried and failed, are reasonably unlikely to
succeed, or are too dangerous to employ.”
The State sufficiently demonstrated that alternative means of investigation
were not likely to succeed. Defendant had engaged in evasive activities including
switching phones, using coded language, and evading other typical surveillance.”
Although the Application may have, in part, been duplicative of applications
submitted with respect to certain co-defendants, the Application also included
48 See Defendant’s Appendix to Amended Motion for Postconviction Relief and
Opening Briefing Supporting Motion at A303-A383; State’s Exhibit 1 at Hearing.
49 See e.g. U.S. v. Abascal, 564 F.2d 821, 826 (9" Cir. 1977) (affidavit sufficiently
described defendant’s suspicion of surveillance and attempts to avoid dealing
directly with drug sources).
19
specific facts related to Defendant, when considered in its entirety — and separately
from the others — sufficiently met the necessity requirement.*°
If the Court determines there was no attorney error, the Court need not address
the prejudice part of the Strickland standard.°! However, to ensure completeness, I
have examined the second factor as well. The State suggests the Court focus on the
strength of the evidence beyond the wiretap(s). Defendant was initially indicted and
arrested without reference to the wiretap. “At the trial, over fifty witnesses testified
for the State, including seventeen of Lloyd’s co-defendants, twenty-seven law
enforcement officers, several expert witnesses, a civilian, and Lloyd’s former
cellmate.”°? Witnesses testified to drug deals with Defendant, a search warrant of
Defendant’s residence led law enforcement to cash hidden in a freezer and car,
Defendant provided a videotaped confession to the DEA, and there was video
surveillance of Defendant at Delaware Park receiving a large sum of money. The
evidence, above and beyond the wiretaps, was more than sufficient to result in a
conviction for one or more of the significant offenses for which Defendant was
charged. In consideration of the trial judge’s suppression letter, and the weight of
the evidence, Defendant has not established a reasonable probability that the
50 See State v. Felton, 2016 WL 3568523, at *12 (Del. Super. June 22, 2016)
(analyzing affidavit that incorporated previous application).
31 See Strickland, 466 U.S. at 700.
2 Lloyd v. State, 152 A.3d at 1269.
20
outcome would have been different if the motion to suppress had been filed and/or
if the evidence had been suppressed. Defendant’s claim of ineffective assistance of
counsel fails because he cannot demonstrate that lack of preparation or action by
Trial Counsel “caused the jury to reach a verdict it would not otherwise have
reached.”
For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief
should be DENIED.
IT ISSO RECOMMENDED.
a L.M wives
cc: Original to Prothonotary
Mark A. Denney, Deputy Attorney General
Julianne E. Murray, Esquire
Peter W. Veith, Esquire
Andrew J. Lloyd (SBI 00337996)
3 Gattis v. State, 697 A.2d 1174, 1186 (Del. 1997).
21