State v. Mumford

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
) I.D. No. 1608020942A
v. )
)
)
RODERICK T. MUMFORD )
(a/k/a Roderick Brown), )
)
Defendant. )
MEMORANDUM OPINION
Submitted: March 18, 2022
Decided: June 30, 2022
Upon Defendant’s Motion for Postconviction Relief,
DENIED.
Haley King, Esquire, Deputy Attorney General, Department of Justice,
Georgetown, Delaware. Attorney for the State of Delaware.
Natalie S. Woloshin, Esquire, Woloshin, Lynch & Associates, P.A., Wilmington,
Delaware. Postconviction Counsel.
Roderick Mumford, Sussex County Correctional Institution, Georgetown, Delaware.
Pro Se.
ROBINSON, J.
I. INTRODUCTION
Defendant Roderick T. Mumford1 (“Mumford”) was convicted after a jury
trial of money laundering, tier 5 possession (cocaine), tier 4 drug dealing (cocaine),
drug dealing (heroin), and two counts of possession of drug paraphernalia. Mumford
moved pro se for postconviction relief alleging ineffective assistance of counsel.
This Court appointed postconviction counsel (“Postconviction Counsel”). Having
investigated Mumford’s allegations, Postconviction Counsel now moves to
withdraw on the ground that Mumford has no arguably meritorious claims. This
Court finds that Mumford has not established ineffective assistance of counsel or
prejudice. Postconviction Counsel’s motion to withdraw is GRANTED and
Mumford’s motion for postconviction relief is DENIED. My reasoning follows.
II. FACTUAL AND PROCEDURAL BACKGROUND
After an investigation, Delaware State Police executed a search warrant on
August 26, 2016, for an apartment at 206 Houston Circle in Millsboro, Delaware, a
suspected “stash house.”2 While executing this warrant, police arrested Mumford
1
Mumford also uses the name Roderick Brown, his petition regarding forfeited property was
appealed under that name. See Brown v. State, 214 A.3d 922, 924 (Del. 2019). I refer to Petitioner
as Mumford throughout this opinion as this is the name under which he was prosecuted and under
which his appeal proceeded.
2
Except where otherwise cited these facts have been taken from the Supreme Court’s decision in
Mumford v. State, 196 A.3d 412, 2018 WL 5096074 (Del. Oct. 17, 2018) (TABLE).
1
while he was sitting in a car outside the apartment.3 During their search of the
apartment, police found a large amount of cocaine, lesser amounts of marijuana and
heroin, and $1,644.00 in cash.
The search warrant for 206 Houston Circle was based upon information
provided to police from a past proven reliable informant that “a black male named
Roderick was selling cocaine from a residence in Houston Acres, specifically from
unit number 206.”4 Based upon this information from the confidential informant,
police established communication with an unwitting informant whom they identified
as “a known distributor for Roderick Mumford’s drug distribution network.”5 The
warrant application details two separate transactions between the unwitting
informant and Mumford at 206 Houston Circle.
Police learned from a past proven reliable informant that Mumford stored the
proceeds of his drug sales at 507 El Coleman Drive in Millsboro, Delaware.6
Pursuant to a second search warrant, police searched the residence at the El Coleman
property and found cocaine, drug packaging materials, digital scales, guns,
ammunition, $3,813.00 in cash, and two keys for safe deposit boxes.
3
Except where otherwise cited these facts have been taken from the Supreme Court’s decision in
Mumford v. State, 196 A.3d 412, 2018 WL 5096074 (Del. Oct. 17, 2018) (TABLE).
4
App. to Postconviction Counsel’s Mem. In Supp. of Mot. to Withdraw, D.I. 96-97 (“PCR App.”)
at A0053 at ¶ 1 (Search Warrant for 206 Houston Circle).
5
Id. at ¶ 2.
6
PCR App. at A0074 (Search Warrant for 507 El Coleman).
2
The keys from the El Coleman property were for two safe deposit boxes
located at PNC Bank branches in Millsboro and Selbyville. Police obtained and
executed search warrants for the safe deposit boxes believing them to contain
proceeds from drug transactions after considering the amount of illegal drugs found
and the relatively little cash. In the Millsboro safe deposit box—owned by Mumford
and Mumford’s co-defendant Shawanda Knox—police found $73,000.00 separated
into $1,000.00 stacks.7 Mumford co-owned the Selbyville safe deposit box—an
express box—with his mother, Joyce Walker.8,9 Over $100,000.00 was found
between the two boxes.10
Mumford was indicted on money laundering, two counts of conspiracy second
degree, aggravated possession tier 5 (cocaine), drug dealing tier 4 (cocaine), two
counts of possession of a firearm by a person prohibited, drug dealing (marijuana),
drug dealing (heroin), and two counts of possession of drug paraphernalia.11
Shawanda Knox was indicted as Mumford’s co-defendant.12
Mumford’s trial counsel (“Trial Counsel”) filed a motion to sever the
possession of a firearm by a person prohibited from the other counts which was
7
Brown, 214 A.3d at 925 (Del. 2019).
8
PCR App. at A0121 (Search Warrant for Safe Deposit Boxes).
9
PCR App. at A0764 (Trial Testimony of Joyce Walker).
10
PCR App. at A0928 (Trial Testimony of Det. Callaway).
11
PCR App. at A0012-15 (October 24, 2016, Indictment).
12
Id.
3
granted. The case proceeded as an “A” case—the majority of the original counts—
and a “B” case—the two counts of possession of a firearm.
The “A” case proceeded to jury trial beginning on July 10, 2017, and lasting
until July 18, 2017. During trial for the “A” case, the State entered a nolle prosequi
for drug dealing (marijuana) and for one of the charges of conspiracy. Trial Counsel
made a motion for judgment of acquittal on the charge of money laundering and one
of the counts of conspiracy second degree.13 The Court granted the motion for
judgment of acquittal for the count of conspiracy and denied it as to money
laundering. The jury convicted Mumford of money laundering, aggravated
possession tier 5 (cocaine), drug dealing tier 4 (cocaine), drug dealing (heroin) and
two counts of possession of drug paraphernalia. Mumford was then sentenced to
serve an aggregate Level V sentence of 10 years.14
Mumford appealed the denial of his motion for judgment of acquittal on the
charge of money laundering to the Delaware Supreme Court. The Delaware Supreme
Court affirmed Mumford’s conviction, finding there was enough evidence presented
by the State to provide a sufficient basis for the jury to conclude that Mumford was
guilty beyond a reasonable doubt as to all elements of the crime of money
13
Trial Counsel’s Motion for Judgment of Acquittal, D.I. 38.
14
D.I. 66.
4
laundering.15 Additionally, Trial Counsel filed a motion for the modification of
sentence which was denied on January 22, 2021.16
Mumford filed a pro se motion for postconviction relief on October 11, 2019,
and a motion for the appointment of counsel on October 15, 2019. Under Superior
Court Criminal Rule 61(e)(1), this Court appointed Natalie S. Woloshin as
Postconviction Counsel (“Postconviction Counsel”). Postconviction Counsel filed
a motion to withdraw on February 11, 2021. Postconviction Counsel states in her
Motion to Withdraw that she made a conscientious examination of the record and
law and concluded there are no meritorious claims to advance in postconviction
proceedings.17 Trial Counsel has submitted an affidavit responding to Mumford’s
postconviction claims.18
After requesting additional time,19 Mumford filed a response to
Postconviction Counsel’s motion on July 6, 2021.20 Mumford thanked
Postconviction Counsel and included additional arguments supporting his motion
for postconviction relief. The State submitted its response to Mumford’s motion for
postconviction relief on August 26, 2021. On December 2, 2021, Mumford filed a
15
Mumford, 2018 WL 5096074, at *1.
16
Trial Counsel Motion for Modification of Sentence, D.I. 56.
17
Motion to Withdraw, D.I. 94.
18
Trial Counsel’s Aff., D.I. 110.
19
D.I. 101; D.I. 107.
20
D.I. 109.
5
request for the appointment of amicus curiae to brief his additional arguments.21
This Court denied this request on January 28, 2022 but allowed Mumford thirty-five
days to file additional arguments.22 Mumford timely filed these additional arguments
on March 10, 2022.23
III. CONTENTIONS
Mumford’s original petition presents eight claims based on ineffective
assistance of counsel. Mumford contends that Trial Counsel was ineffective because
he: (1) “failed to file pre-trial motion for identification of concerned citizen used in
search of 206 Houston Circle”; (2) “failed to file pre-trial motion for identification
of ‘unwitting’ used in search and seizure warrant of 206 Houston Circle”; (3) “failed
to file pre-trial motion challenging lack of probable cause as to 507 El Coleman
Drive”; (4) “failed to challenge the search and seizure warrants issued for the safe
deposit box and express box co-owned by Defendant and others”; (5) “fail[ed] to file
the required pre-trial motions”; (6) “failed to challenge the grand jury indictment
count for money laundering for being vague and ambiguous”; (7) “failed to hire an
expert on drug addictions in opposition to the State’s theory of drug dealing”; and
21
D.I. 116.
22
D.I. 118.
23
D.I. 119.
6
(8) “failed to challenge the issuance of the search and seizure warrants issued for the
safe deposit and express boxes based in false statements and lack of probable cause.”
Mumford argues Trial Counsel’s failures amount to a violation of his rights
under the Sixth and Fourteenth Amendments of the United States Constitution and
his rights under Article I, § 7 of the Delaware Constitution.
After this Court denied his request for appointment of amicus curiae but gave
him a chance to raise additional issues, Mumford added two claims. First, he argues
that the key taken from him was used illegally to access the residence at El Coleman
Drive. Mumford contends that there was entry in violation of his Fourth Amendment
rights when police confirmed the key found on his person unlocked the El Coleman
property. Second, Mumford argues that he was improperly Mirandized for his
custodial interview. Mumford contends that the State’s argument in response to his
seventh claim relying on his confession is improper as he never acknowledged his
Miranda rights during his custodial interview. Additionally, Mumford asserts that
“when counsel is ineffective, prejudice is presumed.”24
The State argues that each of the raised claims fails to meet the Strickland bar.
IV. DISCUSSION
A. Preliminary Procedural Considerations
24
Mtn. for Appointment of Amicus Curiae, D.I. 116, ¶ 4.
7
This Court must first determine if there are any procedural bars to a motion
for postconviction relief before considering the merits of the claims.25 Superior
Court Criminal Rule 61 (“Rule 61”) imposes four procedural bars on such motions:
(1) the motion must be brought within one year after the judgment of conviction is
final or the creation of a newly recognized retroactive right; (2) any basis for relief
must not have been asserted in prior postconviction proceeding unless the petitioner
pleads with particularity new evidence that the petitioner is innocent or there is a
new, retroactive constitutional right that renders the conviction invalid; (3) any basis
for relief not asserted in the proceeding below as required by the court rules is
subsequently barred unless defendant can show cause and prejudice; and (4) any
ground for relief that was formerly adjudicated, whether in the proceedings leading
to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a
federal habeas corpus proceeding, is thereafter barred.26
Mumford’s postconviction motion is timely and the issues it raises have not
been formerly adjudicated. This is Mumford’s first motion under Rule 61.27 The
other procedural bars likewise do not apply because colorable claims of ineffective
assistance of counsel are properly presented by way of a motion for postconviction
25
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
26
Super. Ct. Crim. R. 61(i).
27
Defendant’s first motion, having been filed within one year of the Supreme Court’s decision on
direct appeal, is timely. Super. Ct. Crim. R. 61.
8
relief.28 Mumford’s motion, therefore, is not procedurally barred and I may consider
it on its merits.
B. Strickland Considerations
In each of his eight identified arguments, Mumford claims ineffective
assistance of counsel. To prevail on a claim of ineffective assistance of counsel,
Mumford must meet the two-pronged test established by the United States Supreme
Court in Strickland v. Washington.29 First, he must show that his counsel’s
representation was deficient in that “counsel’s representation fell below an objective
standard of reasonableness.”30 Second, he must show this deficiency resulted in
prejudice.31 If Mumford fails on either of these prongs his motion must be denied.
Although not insurmountable, the Strickland standard regarding the first
prong is highly demanding and leads to a strong presumption that the representation
was professionally reasonable.32 A defendant must show that any alleged errors were
so serious that his counsel was not functioning as the “counsel” guaranteed by the
Sixth Amendment.33 Great weight and deference is given to the tactical decisions of
28
Whittle v. State, 2016 WL 2585904, at *3 (Del. Apr. 28, 2016); State v. Evan–Mayes, 2016 WL
4502303, at *2 (Del. Super. Ct. Aug. 25, 2016).
29
466 U.S. 668, 688, 694 (1984).
30
Id.31
Id.32
Flamer v. State, 585 A.2d 736, 753 (Del.1990).
33
State v. Finn, 2012 WL 1980666, at *4 (Del. Super. Ct. May 23, 2012).
9
trial counsel.34 The reviewing court must avoid viewing counsel’s conduct through
the distorting lens of hindsight, but instead must examine the conduct from the
counsel’s perspective at that time.35 Counsel “cannot be found ineffective for failing
to file a futile motion.”36
Regarding the second prong of prejudice, the reviewing court will not set aside
the conviction if counsel’s deficiency, however unreasonable, had no effect on the
outcome.37 To show prejudice, the defendant must establish “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”38 Further, the likelihood of a different result
“must be substantial, not just conceivable.”39
Mumford asserts that prejudice is presumed once ineffectiveness is found. In
U.S. v. Cronic, the United States Supreme Court provided that where “counsel
entirely fails to subject the prosecution’s case to meaningful adversarial testing, then
there has been a denial of Sixth Amendment rights that makes the adversary process
itself presumptively unreliable.”40 There must be a complete failure of counsel to
presume prejudice under Cronic.41 Mumford has failed to show or even allege that
34
State v. Miller, 2013 WL 871320, at *4 (Del. Super. Ct. Feb. 26, 2013).
35
State v. Wright, 632 A.2d 288, 295 (Del Super. Ct. 1994).
36
State v. Prince, 2022 WL 211704, at *1 (Del. May 18, 2021).
37
Strickland, 466 U.S. at 692.
38
Id. at 687.
39
Id. at 697.
40
466 U.S. 648, 659 (1984).
41
State v. Jackson, 2022 WL 1076083, at*6 (Del. Super. Ct. April 11, 2022).
10
Trial Counsel failed to subject the prosecution’s case to meaningful adversarial
testing. Therefore, prejudice is not presumed, and Mumford’s claims must satisfy
both Strickland prongs.
C. Postconviction Counsel’s Motion to Withdraw
Under Rule 61, appointed postconviction counsel may move to withdraw if
they find the movant’s claim so lacking in merit that postconviction counsel cannot
ethically advocate for it.42 In this motion counsel must explain any factual and legal
basis for that opinion and provide notice to movant the movant.43
D. Mumford’s Claims
i. Claims 1 and 2: Failure to File Motion for the Identification
of Individuals Used in Obtaining Search Warrants.
I address the first and second claims together as both challenge the
effectiveness of Trial Counsel regarding the identities of individuals used in
obtaining the search warrant for 206 Houston Circle. In the first claim, Mumford
contends that Trial Counsel was ineffective for failing to file a pre-trial motion for
identification of the confidential informant used in the issuance of the search warrant
for 206 Houston Circle. He argues that this failure violated his right to confront his
accuser. In his second claim, Mumford contends that Trial Counsel was ineffective
42
Super. Ct. Crim. R. 61(e).
43
Id.11
for failing to file a pre-trial motion for identification of the unwitting informant used
in the search warrant for 206 Houston Circle. Trial Counsel, in his affidavit, stated
that he did not file a motion to seek the identity of the confidential informant or
unwitting informant because there was no meritorious basis for these motions.44
The State argues under Delaware Rule of Evidence 509 and State v. Flowers45
the confidential informant’s and the unwitting informant’s identities would be
protected since their involvement was limited to establishing probable cause for the
search of 206 Houston Circle.
Disclosure of an informant is governed by Delaware Rule of Evidence 509
and State v. Flowers. The State may refuse to disclose the identity of a confidential
informant unless it “appears in a criminal case that an informer may be able to give
testimony which would materially aid the defense.”46 The court in Flowers identified
four categories of situations where a confidential informant is involved in a case:
“(1) the informer is used merely to establish probable cause for a search; (2) the
informer witnesses the criminal act; (3) the informer participates but is not a party
to the illegal transaction; and (4) the informer is an actual party to the illegal
transaction.”47 In Butcher v. State, the Delaware Supreme Court observed that the
44
Trial Counsel’s Aff., D.I. 110, ¶ 8.
45
316 A.2d 564 (Del. Super. Ct. 1973).
46
Delaware Rule of Evidence 509(2).
47
Flowers, 316 A.2d at 56.
12
identity of the informant is generally protected in the first category but not in the
fourth.48 Here, both the confidential informant and the unwitting informant were
only used to establish probable cause and any motion to disclose would have been
futile.
The confidential informant provided information to police of Mumford’s
illegal activities. The informant was a past proven reliable informant who informed
police that a black male named Roderick was selling cocaine from unit number 206
in Houston Acres.49 The confidential informant did not testify at trial and was not a
party or a witness to the transaction for which Mumford was charged. The
confidential informant was only used to establish probable cause for the search
warrant. Any motion to disclose the identity of the confidential informant would
have been futile.
Likewise, any motion to disclose the identity of the unwitting informant
would have been futile. The information provided by the unwitting informant was
also only used to establish probable cause for the issuance of the search warrant for
206 Houston Circle. The identity of the unwitting informant would have similarly
been protected as falling into the first category identified in Flowers.
48
906 A.2d 798 (Del. 2006).
49
PCR App. at A0053 (Search Warrant, 206 Houston Circle).
13
I find that these two claims by Mumford are without merit and Mumford
suffers no prejudice from Trial Counsel’s failure to file motions to disclose the
identities of either the confidential informant or the unwitting informant.
ii. Claim 3: Failure to File Motion Challenging the Probable
Cause for the Search Warrant for 507 El Coleman.
Mumford contends that Trial Counsel was ineffective for failing to file a pre-
trial motion challenging the probable cause for the search warrant for El Coleman
Drive. Mumford supplemented this claim by arguing that the police use of the key
violated the Fourth Amendment, in that trying the key in the door of the El Coleman
property amounted to an illegal entry.50 Trial Counsel stated that it was his opinion
that “there was no basis for a meritorious suppression motion.”51
I only address the prejudice prong of Strickland for this contention.
Mumford’s co-defendant, Ms. Knox, filed a motion to suppress for this very
warrant.52 Ms. Knox argued there a lack of probable cause in the search warrant
because of an insufficient nexus between the known drug activities of Mr. Mumford
at the Houston Circle home, and the El Coleman address.53 This Court addressed and
denied Mumford’s co-defendant’s motion challenging the El Coleman warrant,
50
Mumford Letter March 1, 2022, D.I. 119.
51
Trial Counsel’s Aff., ¶ 9, D.I. 110.
52
PCR App. at A1334 (Knox Suppression Motion, Feb. 14, 2017).
53
Id.14
finding that there was sufficient probable cause to support the issuance of a search
warrant.54 In ruling on Ms. Knox’s motion, this Court examined whether the use of
the key was necessary for the probable cause determination and found it was not.
This Court denied the motion to suppress, observing that police found a quantity of
cocaine, crack cocaine, heroin, marijuana, digital scales, cutting agent, and
$1,644.00 at 206 Houston Circle, and that a past proven reliable confidential
informant advised police that Mumford stored the proceeds of his drug distribution
at 507 El Coleman Drive.55 Had Trial Counsel filed a motion also challenging the
warrant for 507 El Coleman, it would have been similarly denied.
It seems that no Delaware court has directly addressed whether or not using
or checking a key to determine if it fits a residential door constitutes an entry or
search. This Court also does not need address this issue here as the focus of this
Strickland analysis is one of prejudice. But assuming, arguendo¸ there was an illegal
entry, the remedy would be the exclusion of the evidence that resulted from that
entry.56 This Court considered the issue of the use of the key in Ms. Knox’s case and
denied her motion to suppress.57
54
PCR App. at A1342 (Knox Suppression Hearing Transcript, March 8, 2017).
55
Id. at A1340.
56
Jones v. State, 745 A.2d 856, 872 (Del. 1999)
57
PCR App. at A1342 (Knox Suppression Hearing Transcript, March 8, 2017).
15
Mumford suffers no prejudice from Trial Counsel’s failure to file a motion to
suppress as the motion would have been denied, as was his co-defendants’ motion.
Mumford fails to meet the second prong of Strickland in this claim.
iii. Claims 4 and 8: Failure to File Motions Challenging the
Issuance of Search and Seizure Warrants for Safe Deposit
Boxes.
Mumford contends that Trial Counsel was ineffective for failing to challenge
the search and seizure warrants issued for the safe deposit box and the express box
he co-owned. Mumford argues that as the search at 507 El Coleman was illegal, the
keys resulting from that search are the “fruit of the poisonous tree” and Trial Counsel
was ineffective for not filing a motion to suppress. Additionally, in his eighth claim,
Mumford argues that Trial Counsel was ineffective for not filing a motion to
suppress based on false statements found in the affidavit for the search warrant.
Mumford also argues that the warrants lacked probable cause because the keys could
not be connected to any criminal activity.
As an initial matter, as discussed above, the search of the El Coleman property
was valid, therefore the keys found there are not the “fruit of the poisonous tree.”
I now turn to whether there was a meritorious basis for a motion to suppress
the search warrant issued for the safe deposit boxes. A magistrate’s probable cause
determination should be reviewed with great deference and should not “take the form
16
of a de novo review.”58 This Court instead should ensure “that the magistrate had a
substantial basis for concluding that probable cause existed.”59 Probable cause may
be found when, considering the totality of the circumstances, there is a fair
probability that contraband or evidence of a crime will be found in a particular
place.60 Here, under a totality of the circumstances, there is sufficient probable cause
for the issuance of a search warrant of the safe deposit boxes. In the search warrant,
police identify evidence of drug dealing, a large amount of drugs, the keys to the
safe deposit boxes, and relatively little money.61 The warrant includes the discovery
of evidence of drug dealing including: over 48 grams of cocaine, 12.89 grams of
crack cocaine, 0.46 grams of heroin, 18.73 grams of marijuana, digital scales,
“cutting agent,” packaging material, firearms, and ammunition. Under a totality of
the circumstances, and giving deference to the magistrate, there was a fair
probability that evidence of a crime would be found in the safe deposit boxes co-
owned by Mumford.
I now address Mumford’s argument regarding false statements contained
within the warrant. Where a defendant “makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with reckless disregard for the
58
State v. Holden, 60 A.3d 1110, 1114 (Del. 2013).
59
Sisson, 903 A.2d at 296 (citing Smith v. State, 887 A.2d 470, 473 (Del. 2005).
60
Id.61
PCR App. at A0125(Search Warrant for Safe Deposit Boxes).
17
truth, was included by the affiant in the warrant affidavit, and if the allegedly false
statement is necessary to the finding of probable cause, the Fourth Amendment
requires that a hearing be held at the defendant’s request.”62 Mumford argues that
the statement “[t]he keys were concealed to avoid detection from others” is
completely false. He argues instead that “[the keys were] located in a bedside table
in plain view upon opening the drawer.”63 It is impossible for Mumford to make a
substantial preliminary showing that the statement within the warrant is a false
statement. The statements in the warrant application characterizing the placement of
the key as concealment to avoid detection from others is not a false statement, as
even Mumford admits the keys were concealed—albeit in a closed drawer.
Assuming, arguendo, the statement regarding the location of the keys was false, it
would not invalidate the search warrant, as it is not necessary to the finding of
probable cause due to the abundance of other evidence included in the warrant
application as explained above.
Mumford fails to show prejudice for this claim because any motion to
suppress for the safe deposit boxes would have been denied, as probable cause for
the issuance of the warrant existed.
iv. Claim 5: Failure to File Required Pre-Trial Motions.
62
Franks v. Delaware, 438 U.S. 154, 155–56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667 (1978).
63
Pt’r. Mot. for Postconviction Relief, D.I. 75, ¶ 8.
18
Mumford contends that Trial Counsel’s failure to file required pre-trial
motions to suppress evidence, challenging his indictment, and challenging the
jurisdiction of the court constituted ineffective assistance of counsel. He argues that
these filings were required to preserve his rights on appeal.
“The court shall dismiss entirely conclusory allegations of ineffective
assistance of counsel. The movant must provide concrete allegations of prejudice,
specifying the nature of the prejudice and the adverse effects actually suffered.”64
“Mere conclusory assertions of ineffectiveness of counsel are insufficient.”65
Mumford’s claims here are conclusory. Mumford argues that his due process
rights were limited as he could not assert claims on appeal. Mumford does not
identify what the claims he would assert on appeal, what motions to suppress should
have been filed (other than those already asserted), the issue with the indictment
(other than those addressed in the other claims), or why jurisdiction was an issue.
Jurisdiction of this Court was established during testimony66 and Mumford fails to
show any prejudice here. This claim also fails.
v. Claim 6: Failure to Challenge Grand Jury Indictment.
64
State v. Powell, 2016 WL 3023740, at *6 (Del. Super. Ct. May 24, 2016), aff'd, 173 A.3d 1044(Del. 2017).
65
State v. Howard, 2014 WL 5804529, at *3 (Del. Super. Ct. Oct. 27, 2014), aff'd, 126 A.3d 642(Del. 2015).
66
PCR App. at A0235 (Trial Testimony of Det. Callaway); A0338(Trial Testimony of Cpl.
Gallagher); A0346 (Trial Testimony of Cpl. Demalto).
19
Mumford contends that Trial Counsel was ineffective for failing to challenge
the count for money laundering because it was vague and ambiguous. He argues that
the indictment failed to “contain essential elements nor a concise, definite, plain
statement” 67 informing him of how he committed the crime.68 He argues it was
overly broad and failed to protect him from being subsequently charged for the same
crime.69
The money laundering charge read as follows:
RODERICK T. MUMFORD, on or about the 26th day of August, 2016,
in the County of Sussex, State of Delaware, did knowingly acquire or
maintain an interest in, conceal, possess, transfer or transport the
proceeds of criminal activity, in violation of Title 11, Section 951(a)(1)
of the Delaware Code.70
Superior Court Criminal Rule 7(c) provides that an indictment “shall be a
plain, concise and definite written statement of the essential facts constituting the
offense charged.71 The indictment serves two functions: “to put the accused on full
notice of what he is called upon to defend, and to effectively preclude subsequent
prosecution for the same offense.”72 Generally, it is sufficient that an indictment
67
The argument of missing essential elements was also advanced in Mumford’s initial appeal.
Mumford, 2018 WL 5096074, at n. 22. It seems that Mumford continues to argue that this Court
should also consider the elements required under federal statute 18 U.S.C § 1956. This is not the
statute applicable to Mumford’s indictment nor this Court’s analysis.
68
Pt’r. Mot. for Postconviction Relief, D.I. 75, ¶ 6.
69
Id.
70
PCR. App. at A0012 (Indictment, State v, Roderick T. Mumford, Case No. 1608020942A).
71
Super. Ct. Crim. R. 7.
72
Malloy v. State, 462 A.2d 1088, 1092 (Del. 1983).
20
follows the language of the statute.73 Here, the indictment tracks the language of the
statute and is sufficiently specific to prevent subsequent prosecution.74
Trial Counsel is not ineffective for failing to file a meritless motion
challenging the count of money laundering.
vi. Claim 7: Failure to Hire Expert on Drug Addictions.
Mumford contends that Trial Counsel’s failure to hire an expert on drug
addiction to counter the State’s charge of drug dealing constituted ineffective
assistance of counsel. He argues that Trial Counsel advanced a theory that Mumford
was a drug user, and that the drugs found at his residence were for personal use as
opposed to dealing. Mumford argues that an expert could have testified that the
amount of drugs found during the investigation was “not unusual for a person
addicted to drug use even if the use is recreational.”75 Mumford contends his
admission to selling drugs came from a police interview that was in violation of
Miranda. Mumford does not contend that he did not understand his rights at the time
of the interview, just that Trial Counsel was ineffective in not challenging this
interview.
73
State v. Deedon, 56 A.2d 660, 662 (Del. 1963); see Allison v. State, 148 A.3d 688 (Del. 2016):
see also State v. McGuiness, 2022 WL 1538488, at *2 (Del. Super. Ct. May 13, 2022).
74
11 Del. C. § 951: “A person is guilty of money laundering when the person knowingly acquires
or maintains an interest in, conceals, possesses, transfers, or transports the proceeds of criminal
activity.
75
Pt’r. Mot. for Postconviction Relief, D.I. 75, ¶ 7.
21
During the interview, Detective Reynolds, the officer conducting the
interview, read Mumford his Miranda rights and then stated:
Reynolds: If you decide to answer any question with or without an attorney
present you may stop at any time during the questioning. Do you
understand each of these rights I’ve explained to you? Having
these rights in mind do you want to talk to me?
Mumford: What do you want to talk about?
Reynolds: Well, I’m gonna ask you some questions. You good with that?
Just ask you some questions see what we got going on. Is that
cool?
Mumford: I already seen you before.
Reynolds: You’ve seen me before?
Mumford: Riding around.
….76
It is unclear from the transcript if Mumford gave an express waiver such as a
nodding his head or some other non-verbal cue. The interview continued, consisting
of hundreds of questions. Mumford requested to make a phone call at several points
during this interview. Mumford specifically asked “when do I get a phone call so I
can call my lawyer or try to make bond?”77
When a defendant waives his privilege against self-incrimination and the right
to counsel pursuant to Miranda, the State bears the burden of proving by a
preponderance of the evidence that the waiver was voluntary and the product of a
knowing and intelligent decision.78 In the absence of an express waiver, the validity
76
A0021 (Mumford Interview dated August 26, 2016).
77
A0030.
78
Howard v. State, 458 A.2d 1180, 1183 (Del. 1983).
22
of an alleged waiver of Miranda rights depends on a “totality of the circumstances”
test to determine whether there was an “implied” waiver.79 “The primary issue for
implied waiver is whether the defendant’s actions and words constituted a course of
conduct indicating an implied waiver; the Court must be able to ‘clearly infer[ ]
[waiver] from the actions and words of the person interrogated.’”80 The totality of
the circumstances analysis includes “the behavior of the interrogators, the conduct
of the defendant, his age, his intellect, his experience, and all other pertinent
factors”81 The totality of the circumstances must reveal both an uncoerced choice
and the requisite level of comprehension that a court may properly conclude that
Miranda rights have been waived.82
Reviewing this transcript of the interview, this Court concludes that there was
at least an implied waiver. Mumford was read his Miranda warnings and,
subsequently, responded to police questioning. Mumford does not contend that the
officers intimidated, coerced, or deceived him into waiving his rights, and this Court
finds that no such evidence exists in the record. Mumford was forty-five at the time
of the interview, and familiar with the criminal justice system. Mumford does not
argue that he did not understand his rights, just that counsel was ineffective for not
79
Rambo v. State, 939 A.2d 1275, 1279 (Del. 2007).
80
Bennett v. State, 992 A.2d 1236 (Del. 2010) (quoting State v. DeAngelo, 2000 WL 305332, at
*8 (Del. Super. Ct. Mar. 21, 2000).
81
Howard v. State, 458 A.2d 1180, 1183 (Del. 1983).
82
Moran v. Burbine, 475 U.S. 412, 421 (1986); see also Bennett v. State, 992 A.2d 1236 (Del.
2010).
23
challenging the interview. There is no evidence of an uncoerced choice and,
throughout the interview, Mumford possessed the requisite level of comprehension
for this Court to conclude that his Miranda rights had been waived.
The State presented an expert who testified that the amount of cocaine found
by police was “a lot more” than a typical cocaine user would possess.83 With
Mumford’s own admission, the statements of the State’s experts, and the amount of
illegal drugs and cash found in Mumford’s possession, the deck is heavily stacked
against Mumford. Great weight and deference are given to the tactical decisions of
trial counsel.84 Here, Trial Counsel determined that a drug addiction expert could not
explain away the evidence of drug dealing presented by the State.85
Mumford’s claim regarding Trial Counsel’s failure to hire an addiction expert
to counter the State’s theory of drug dealing fails to show ineffective assistance of
counsel.
V. CONCLUSION
Having carefully reviewed the record, I conclude that Mumford’s claims are
without merit and no other grounds for relief exist. I am also satisfied that
Postconviction Counsel made a conscientious effort to examine the record and the
83
App. to Postconviction Counsel’s Mtn. to Withdraw at A0997 (Trial testimony of Lt. Tyndall
(July 11, 2017)).
84
State v. Miller, 2013 WL 871220, at *4 (Del/ Super. Ct. Feb. 26, 2013).
85
Trial Counsel Aff. ¶13. D.I. 110.
24
law to determine that Mumford does not have a meritorious claim to be raised under
Rule 61. Mumford’s Motion for Postconviction relief is DENIED, and Ms.
Woloshin’s Motion to Withdraw is GRANTED.
25