State v. Cooper

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
v. ) ID No. 1801007017
)
MAURICE COOPER )
Submitted: April 17, 2023
Decided: July 31, 2023
*Corrected: August 11, 2023
Upon Defendant Maurice Cooper’s Motion for Postconviction Relief
DENIED.
MEMORANDUM OPINION
Mark A. Denney, Jr. Esquire, Erika Flaschner, Esquire, Deputy Attorneys General,
DEPARTMENT OF JUSTICE, 900 North King Street, 4th Floor, Wilmington,
Delaware 19801.
Richard Sparaco, Esquire, LAW OFFICE OF RICHARD SPARACO, LLC, 1920
Fairfax Avenue, Cherry Hill, New Jersey 08003 and P.O. Box 371, Lewes,
Delaware 19958; Jan A. T. van Amerongen, Jr., Esquire, OFFICE OF
CONFLICTS COUNSEL, 900 North King Street, Suite 320, Wilmington,
Delaware 19801, Attorneys for Defendant Maurice Cooper.
WHARTON, J.
*Punctuation marks and n. 326
I. INTRODUCTION
Defendant Maurice Cooper (“Cooper”) was convicted by a jury of Drug
Dealing (Heroin), Aggravated Possession of Heroin, four counts of Possession of a
Firearm During the Commission of a Felony (“PFDCF”), four counts of Possession
of a Firearm by a Person Prohibited (“PFBPP”), and two counts of Possession of
Ammunition by a Person Prohibited (“PABPP”).1 For sentencing purposes, the
two drug charges merged.2 The Court sentenced Cooper to unsuspended Level V
imprisonment of 15 years on the merged drug charge, five years on each PFDCF
charge, and 10 years on each PFBPP charge.3 The sentences on the PFDCF and
PFBPP charges were all minimum mandatory sentences.4 He was sentenced to
probation on the PABPP charges.5 Cooper’s direct appeal was unsuccessful.6
On April 7, 2021, Cooper filed a pro se Motion for Postconviction Relief
(“pro se Motion”)7 and request for appointment of counsel. The Court appointed
Peter A. Levin, Esquire (“Levin”) to represent Cooper, and Levin then submitted
an Amended Motion for Post Conviction Relief (“Amended Motion”).8 After
1
Cooper v. State, 228 A.2d 399 (Del. 2020).
2
Id. at 407.
3
Id.4
Id.5
Id.6
Id. at 408.
7
Def.’s pro se Mot., D.I. 120.
8
Def.’s Am. Mot., D.I. 135.
1
Levin discovered that he had a conflict of interest due his representation of a
previous client in a related case, Richard Sparaco, Esquire (“Sparaco”) was
appointed to represent Cooper. Sparaco filed a Supplemental Brief in Support of
Motion for Post-Conviction Relief (“Supplemental Brief”)9 and Appendix
(“Supplemental Brief Appendix”).10 The State filed its Response in Opposition to
Cooper’s Amended Motion for Postconviction Relief (“State’s Response”).11 On
April 17, 2023, the Court held an evidentiary hearing. The Court has carefully
considered the parties’ submissions as well as the evidence presented at the
hearing. For the reasons set forth below, Cooper’s Motion is DENIED.
II. FACTUAL AND PROCEDURAL BACKGROUND
In 2014, police began receiving tips about large scale distribution of heroin,
cocaine, and marijuana taking place in Wilmington.12 Primarily through
informants the police began taking a specific interest in Cooper.13 For example,
based on information obtained from confidential informants, and confirmed
through their own investigation, the police sought and obtained search warrants for
a business (3607 Downing Drive, Unit 8, Wilmington, Delaware; “Unit 8”) and a
residential address (2338 West 18th Street, Apartment 1, Wilmington, Delaware;
9
Def.’s Supp. Br., D.I. 154.
10
Def.’s Supp. Appx., D.I. 155.
11
State’s Resp., D.I. 160.
12
Cooper v. State, 228 A.3d at 401.
13
Id. at 401–02.
2
“Apartment 1”).14 On January 15, 2018, the police executed these warrants,
finding several firearms, ammunition, cash, “a large quantity of packaged
heroin[,]” and “a large quantity of raw heroin,” in addition to finding evidence in
Apartment 1 confirming that Cooper occupied it. 15
The police then obtained two search warrants for Cooper’s Instagram
account. The first covered November 25, 2017 through January 15, 2018.16 That
search yielded evidence linking Cooper to firearms.17 The second, for May 18,
2017 through January 15, 2018, “yielded additional incriminating information.”18
Cooper’s motions to suppress seized from these warrants were denied.19
Cooper was arrested during the January 15, 2018 searches20 and indicted the
following day.21 He was originally indicted on an array of drug and weapon
possession related offenses,22 but grand juries later returned several superseding
indictments adding conspiracy, racketeering, and money laundering charges.23
Cooper was initially represented by John Edinger, Esquire (“Edinger”).
During that time, the Court received several letters from Cooper asking to proceed
14
Id. at 403.
15
Id.
16
Id.
17
Id. at 403–04.
18
Id. at 404.
19
Id.
20
Id. at 403.
21
D.I. 1.
22
Id.
23
D.I. 16; D.I. 25; D.I. 30.
3
pro se.24 Since he was represented, the Court referred all letters to counsel.25
According to Court records, Edinger did not pursue any of these requests.
On August 6, 2018, Stephanie Volturo, Esquire (“Volturo”) of the Office of
Conflicts Counsel moved for the admission pro hac vice of James Brose, Esquire
(“Brose”).26 That motion was granted on August 10, 2018.27 Brose went to work
immediately, within the first month and a half filing a combined Motion to Sever
and Motion for Bill of Particulars.28 Volturo and Brose also filed multiple Motions
to Suppress29 and a Motion to Reveal Identity of Confidential Informant.30 The
motions were ultimately either denied, withdrawn, or rendered moot.31
Before the February 25, 2019 commencement of trial, the State entered nolle
prosequis on several counts in an effort to avoid calling a confidential informant as
a witness.32 On February 19, 2019, Brose informed the Court that Cooper would
be pursuing an entrapment defense,33 claiming that the confidential informant sold
24
E.g., D.I. 7; D.I. 13.
25
See Super. Ct. Crim. R. 47. E.g., D.I. 10; D.I. 12.
26
D.I. 26.
27
D.I. 27.
28
D.I. 31 (September 28, 2018).
29
E.g., D.I. 47 (Instagram account); D.I. 53 (Cooper’s statement).
30
D.I. 46 (Motion to Suppress Search Warrant and to Reveal Identity of
Confidential Informant).
31
D.I. 55.
32
D.I. 58; State’s Resp., at 24., D.I. 160.
33
D.I. 59.
4
him one of the guns for which he was charged.34 On February 21, 2019, the parties
discussed concerns over Cooper’s wearing prison clothes for jury selection,35 how
to handle the person prohibited charges,36 the overlap between the confidential
informant, Instagram communications, and the entrapment defense,37 and voir dire
questions.38 After Brose discussed the matter with Cooper, the parties stipulated
that during the timeframe at issue (January 1, 2015–January 15, 2018), Cooper was
a person prohibited from possessing firearms and ammunition.39 On February 22,
2019, Brose requested a continuance in order to attempt to recover Cooper’s
deleted Instagram messages.40 The State opposed.41
On the morning of trial, Brose made two oral motions; one for a
continuance, again hoping for additional time to forensically retrieve Cooper’s
deleted Instagram messages, and the second for the identity of an informant to
34
Id.
35
E.g., Trial Tr. Feb. 21, 2019, at 2:11–4:2; 43:16–44:4.
36
Id. at 4:7–9:4.
37
Id. at 9:5–34:16. Messages from Cooper’s Instagram account were deleted and
were not retrievable despite several attempts by the State. Despite “[Cooper]
want[ing] to go down with the entrapment defense or not go down at all[,]” the
Court made it explicitly clear to Brose that Cooper “needs to go into this decision
with both eyes open, full awareness of what the potential consequences of
presenting that[.]” Id. at 31:16–18; 33:10–13.
38
Id. at 34:17–42:23.
39
Id. at 47:8–49:19; D.I. 61.
40
D.I. 64.
41
D.I. 65.
5
subpoena him/her for trial.42 The State opposed the continuance request, claiming
that the State did all it could to get the deleted messages, that a prospective witness
to the entrapment allegation, Kiarye Braxton (“Braxton”), was available to testify,
that its witnesses would be inconvenienced with a rescheduling; and that “it [would
be] an affront to judicial economy.”43 The Court denied the request for a
continuance and reserved decision on the informant identification issue.44
A jury trial took place from February 25 to 28, 2019.45 During trial, the
State called numerous witnesses, including multiple law enforcement officers and
expert witnesses Rachel Philibert, a forensic chemist with the Delaware Division
of Forensic Science,46 Kira Glass, a latent print examiner with the FBI
Laboratory,47 and Erica Ames, a forensic examiner in the DNA Case Work Unit at
the FBI Laboratory.48 The jury heard, for example, that Cooper admitted that
everything found in Apartment 1 was his,49 that there is “very strong support that
42
D.I. 69.
43
Trial Tr. Feb. 25, 2019, at 21:8–24:1.
44
D.I. 69.
45
D.I. 69.
46
Trial Tr. Feb. 25, 2019, at 196–211.
47
Trial Tr. Feb. 26, 2019, at 43–52.
48
Id. at 55–84.
49
E.g., Special Agent Haney testified that Cooper stated “[his girlfriend] didn’t
have anything to do with this. Everything in the house is mine.” Trial Tr., Feb. 25,
2019, at 78:22–23; Detective Jeffrey Silvers testified that Cooper stated something
along the lines of “[a]nything that’s found in here belongs to me. She has nothing
to do with it.” Id. at 107:20–22.
6
Cooper is a contributor to the Ruger handgun,”50 and that his middle finger’s print
was found on magazine paper and tape51 located “inside of the locked Husky
toolbox that contained heroin and the gun at [Unit 8].”52 The Court denied
Cooper’s Motion for Judgment of Acquittal, his pro se Motion for Dismissal, and
his objection to the conspiracy question and charge going back to the jury.53
On February 27, 2019, after much discussion between the parties as well as
between Cooper and his counsel, Cooper informed the Court that neither Braxton54
nor he would be testifying.55 Also, for the first time, the Court was, made aware of
Cooper’s desire to proceed pro se.56
On February 28, 2019, Cooper was found guilty of Drug Dealing (Heroin),
Aggravated Possession of Heroin, PFDCF (four counts), PFBPP (four counts) and
PABPP (two counts).57 He was found not guilty of Conspiracy to Commit
Racketeering and two counts of Receiving a Stolen Firearm.58 He was sentenced
to a total of 75 years of unsuspended imprisonment at Level V.59
50
Trial Tr., Feb. 26, 2019, at 69:7–9.
51
Id. at 50:3–52:5.
52
Id. at 53:15–21.
53
D.I. 69.
54
Trial Tr., Feb. 27, 2019, Volume I, at 37:1–16.
55
Id. at 39:22–40:1.
56
Id. at 14:11–15:4; 18:9–11. (“THE COURT: I don’t have any -- I don’t have a
copy of that motion. You never brought it to my attention, certainly.”)
57
D.I. 69.
58
Id.
59
Sentencing Tr., May 31, 2019, 34:5–36:12.
7
Cooper raised four issues on direct appeal to the Delaware Supreme Court.60
Cooper claimed that this Court erred in denying his motions to suppress evidence
from the Apartment 1, Unit 8, and Instagram searches.61 He also claimed that his
sentence violated the Eighth Amendment’s prohibition on cruel and unusual
punishment.62 The Supreme Court “[found] no merit to Cooper’s claims and
affirm[ed],”63 finding that “the facts and circumstances set forth in the applications
were sufficient to permit the judge issuing the warrants to reasonably find that the
items sought would be found in Apartment 1 and Unit 8.”64 The Supreme Court
also rejected Cooper’s challenge to the Instagram warrants.65 Finally, it found that
the facts of this case, combined with Cooper’s criminal history, justified his
sentence and “do not create an inference of gross disproportionality to his crimes,
they do not violate the Eighth Amendment.”66
On April 7, 2021, Cooper filed his pro se Motion 67 and on April 8, 2021, he
filed a Motion for Appointment of Counsel.68 His request for counsel was granted
60
Cooper, 228 A.3d 399.
61
Id. at 401.
62
Id.63
Id.64
Id. at 406.
65
Id.66
Id. at 407–08. The Supreme Court also denied Cooper’s Mot. for Rehearing and
Reargument. D.I. 135 at 7.
67
Def.’s pro se Mot., D.I. 120.
68
D.I. 121.
8
on April 19, 2021.69 Levin was assigned to represent him and was admitted pro
hac vice on January 21, 2022.70 After submitting Cooper’s Amended Motion,
Levin discovered that he had a conflict of interest that disqualified him from
continuing to act as counsel for Cooper.71 Sparaco then was assigned to replace
Levin and was admitted pro hac vice on August 18, 2021.72 Sparaco filed the
Supplemental Brief and Appendix on December 28, 2022.73
Prior to submitting his brief and appendix, Sparaco filed a motion to
withdraw as counsel.74 Cooper filed a Motion75 and Amended Motion76 for
Disqualification of Counsel, but sought to withdraw them.77 This Court ultimately
instructed Sparaco to remain on the case and to file his drafted Supplemental
Brief.78
After considering the parties’ submissions, the Court ordered an evidentiary
hearing to “address Cooper’s allegations of ineffective assistance of counsel
against his original counsel and his trial and appellate counsel, including, but not
69
D.I. 125.
70
D.I. 127.
71
D.I. 141.
72
D.I. 145.
73
Def.’s Supp. Br., D.I. 154; Def.’s Supp. Appx., D.I. 155.
74
D.I. 150.
75
D.I. 153.
76
D.I. 156.
77
D.I. 157.
78
D.I. 151; D.I. 158.
9
limited to, his allegations with respect to pro se representation.”79 The hearing was
held on April 17, 2023.80 Cooper was the only witness to testify at the hearing.
Neither party chose to call Edinger or Brose, nor were affidavits presented from
them by either party.
III. THE PARTIES’ CONTENTIONS
A. Cooper’s Pro Se Motion.
In his pro se Motion Cooper identifies three general grounds for relief: (1)
ineffective assistance of counsel; (2) prosecutorial misconduct; and (3) abuse of
discretion.81 More specifically, he alleges that Edinger was ineffective in: (1)
failing to submit numerous pro se motions on his behalf after the court failed to
honor his request to represent himself; and (2) failed to object to a superseding
indictment returned “days before trial and more than 6 months after original
indictment, and asserting speedy trial rights.”82 He alleges that Volturo was
ineffective by violating his rights in selecting Brose, an out of state attorney to
represent him.83 Finally, he alleges Brose was ineffective in failing to (1) “reapply
in Supreme Court (separate) to represent [him] on appeal knowing the conflict of
interest; (2) move for a Franks hearing in connection with the suppression motion,
79
D.I. 164 at ¶4.
80
D.I. 165.
81
D.I. 120.
82
Id.83
Id.10
knowing that Agent Barnes used false information provided by CS5; (3) “suppress
illegal wiretap use by FBI Agent Haney … and GPS used in surveillance in CS5
encounters of affidavits of searches;” (4) “object to Det. Barnes and Special Agent
Haney hearsay statements to Guns and Drugs being ‘found’ in shop;” (5)
investigate or call owner of shop to testify that nothing was found in his shop
because he was not charged with a crime;” (6) object to Det. Barnes and Special
Agent Haney, who were both witnesses, sitting at counsel table during trial; (7)
suppress DNA evidence, object to the State’s DNA expert’s testimony, and use
defense DNA expert; (9) object to fingerprint testimony or to retain a defense
fingerprint expert; (10) raise a Brady violation claim regarding the State
withholding Instagram messages, hire a defense expert to retrieve Instagram
messages, and object to the introduction of Instagram messages at trial; (11)
introduce evidence that the informant sold him the guns, despite raising that defense
in his opening statement; (12) investigate before trial and call Braxton as a witness;
(13) object to an improper answer to a jury question; (14) object to the racketeering
charge “being introduced at trial;” and (15) “object to stipulation of charges (prior)
as they were incorrect and proper colloquy was not performed nor no instruction.”84
The specifics of Cooper’s prosecutorial misconduct claim are the State: (1)
failed to produce Instagram messages of the informant; (2) “defrauded the Court on
84
Id.11
allegations of [him] being indicted in Feb. of 18 for Racketeering;” (3) continued to
talk about money laundering charges in closing argument despite dropping them
during trial; (4) continued to pursue Racketeering charges “after he dropped 6
codefendants part of federal trial and vindictively re-indicted [him] back to
Racketeering.”85
Finally, Cooper raises two grounds under his abuse of discretion claim: (1)
the Court failed to “separate PFBPP charges and failed to hold a colloquy about
[his] prior convictions and not instructing jury about them may or may not accept
them;” and (2) the Court violated his constitutional rights in the manner in which it
ruled on his motion to disclose the identity of the confidential informant.86
B. Levin’s Amended Motion for Postconviction Relief.
As directed by the Court, first postconviction counsel Levin filed an
Amended Motion on Cooper’s behalf on June 14, 2022.87 The Amended Motion
addresses the three general claims raised by Cooper’s pro se Motion as well as the
specific claims under each. Levin identifies certain issues raised in the pro se
Motion which, in his view lack merit, but in each such case notes that Cooper
disagrees.
85
Id.86
Id.87
D.I. 135.
12
The Amended Motion first addresses 22 ineffective assistance of counsel
claims, two of which relate to Edinger and the other 20 to Brose. Claims Levin
deems meritorious with regard to Edinger are allegations that he was ineffective in
failing to: (1) bring motions on Cooper’s behalf to allow him to proceed pro se;88
and (2) assert a speedy trial violation and object to the superseding indictment.89
Regarding Brose, Levin deems he was ineffective in failing to: (1) challenge the
veracity of the affidavits in support of the search warrants and file a Franks Motion
regarding CS5’s false allegations;90 (2) present an entrapment defense after
admitting Cooper’s guilt in his opening statement;91 (3) object to Special Agent
Haney’s testimony regarding a photograph sent to him by the confidential
informant in violation of Cooper’s Sixth Amendment confrontation rights;92 (4) use
police reports to impeach officers and the State’s forensic chemist expert witness;93
(5) investigate and call witnesses regarding the drugs and firearms seized during
the execution of the search warrant at the shop;94 (6) object to a stipulation
regarding Cooper’s prior record and to research his prior convictions adequately;95
88
Id. at 31-33.
89
Id. at 41-42.
90
Id. at 33-39.
91
Id. at 43-44.
92
Id. at 44-46.
93
Id. at 47-48.
94
Id. at 49-50.
95
Id. at 51.
13
(7) file for discovery and inspection;96 (8) object to Instagram photographs and
retain and expert;97 (9) object to the Court’s decision regarding the confidential
informant’s identity;98 (10) move for a new trial;99 (11) object to the State’s FBI
fingerprint expert’s report;100 (12) object to the State’s FBI DNA expert’s report
and testimony;101 (13) move to suppress DNA samples collected from Cooper;102
and (14) request a missing witness instruction for an unidentified confidential
informant.103
Claims raised by Cooper which Levin deems to have no merit, but which
Cooper still maintains are meritorious are allegations that Brose was ineffective in
failing to: (1) move to suppress the wiretap and GPS surveillance on the basis that
they were illegally conducted by federal agents;104 (2) move to dismiss the
indictment on the basis of an illegal arrest and lack of state jurisdiction; 105 (3) seek
a DNA expert regarding Cooper’s DNA swabs;106 (4) object to the manner in
96
Id. at 52.
97
Id. Levin notes this claim is redundant.
98
Id. at 52-54.
99
Id. at 54-55.
100
Id. at 55-56..
101
Id. at 57-59.
102
Id. at 59-61.
103
Id. at 61-62.
104
Id. at 39-40.
105
Id. at 40-41.
106
Id. at 46-47.
14
which a note sent by the jury during its deliberations was answered;107 (5) object to
and challenge the FBI fingerprint expert witness’s report;108 (6) sequester two
witnesses who sat at the State’s counsel table during trial; 109 and (7) object to
Count I of the verdict form (Conspiracy to Commit Racketeering) and move for a
mistrial.110
Claims related to prosecutorial misconduct deemed meritorious by Levin are
allegations that: (1) the State withheld communications between Cooper and the
confidential informant;111 and (2) the State presented tainted evidence to the
jury.112
Claims related to prosecutorial misconduct deemed to have no merit by
Levin are allegations that the State: (1) interfered with a witness;113 (2) lied to the
jury when Cooper was indicted;114 (3) nolle prossed the money laundering charge
but continued to comment on it during closing argument;115 (4) improperly sent
Cooper’s discovery to other attorneys and codefendants;116 and (5) engaged in
prosecutorial vindictiveness when it ended the prosecution of five of his
107
Id. at 50-51.
108
Id. at 55-56.
109
Id. at 56-57.
110
Id. at 57.
111
Id. at 63.
112
Id. at 65-66.
113
Id. at 63-65.
114
Id. at 66-67.
115
Id. at 67.
116
Id.
15
codefendants who were subsequently tried in federal court, but continued his
prosecution in state court.117
Claims related to the allegation that the Court abused its discretion deemed
meritorious by Levin are that the Court: (1) violated Cooper’s Fifth Amendment
right to remain silent by ruling he had to testify in order for the Court to order the
State to reveal the identity of a confidential informant;118 and (2) allowed Cooper’s
codefendants’ plea agreements to be admitted into evidence at trial.119
Claims related to the allegation that the Court abused its discretion deemed
to have no merit by Levin are allegations that the Court: (1) accepted a prior
conviction stipulation without holding a colloquy with Cooper and failed to
instruct the jury that it could accept the stipulation or not;120 (2) violated Cooper’s
rights when it made certain remarks during the testimony of Det. Barnes;121 (3)
Judge Butler improperly ruled on a jury note;122 and (4) Brose was admitted pro
hac vice improperly without the Cooper’s permission.123
C. Current Postconviction Counsel’s Supplemental Brief.
117
Id. at 67-69.
118
Id. at 69-70.
119
Id. at 71-73.
120
Id. at 69-70.
121
Id. at 73-75.
122
Id. at 75. Levin notes this claim is redundant.
123
Id. at 75-76.
16
Current postconviction relief counsel filed his Supplemental Brief and
Appendix on December 28, 2022.124 The Supplemental Brief contains
supplemental legal argument on Cooper’s prior ineffective assistance of counsel
claims, raises new claims, requests an evidentiary hearing,125 and re-submits
Cooper’s prior pro se claims as well as those raised in Levin’s Amended
Motion.126
The ineffective assistance of counsel claims raised in the Supplemental Brief
are that counsel was ineffective in: (1) failing to comply with Cooper’s request to
represent himself;127 (2) conceding guilt but failing to present any defense.128 (3)
failing to ensure that Cooper did not present himself to the jury panel in prison
clothes;129 and (4) failed to subject the State’s case to meaningful adversarial
testing and was otherwise ineffective.130 In particular, this last claims specifies
that: (1) trial counsel failed to object to Special Agent Haney’s testimony on the
ultimate issue of guilt;131 (2) trial counsel failed to move for a Franks hearing;132
(3) trial counsel failed to object to the Court’s decision regarding disclosure of the
124
D.I. 154 (Def.’s Supp. Br); D.I. 155 (Appendix).
125
The request for an evidentiary hearing is moot, inasmuch as the Court held a
hearing on April 17, 2023.
126
D.I. 154.
127
Id. at 4-11.
128
Id. at 11-14.
129
Id. at 14-18.
130
Id. at 18-29.
131
Id. at 19-21.
132
Id. at 21-23.
17
confidential informant’s identity;133 (4) appellate counsel failed argue on direct
appeal that the codefendant’s guilty pleas should not have been admitted into
evidence;134 and (5) both trial and appellate counsel were ineffective in failing to
move to dismiss the indictment based on a violation of Cooper’s speedy trial
rights.135 Finally, the Supplemental Brief argues that trial counsel was ineffective
in failing to call Braxton as a witness despite knowing that Braxton could provide
exculpatory testimony.136
D. The State’s Response.
The State submitted its Response on February 20, 2023.137 The Response
addresses the claims raised by the Supplemental Brief in detail and addresses
Cooper’s pro se claims and the Amended Motion in a more cursory fashion.
Regarding the arguments in the Supplemental Brief the State argues that: (1)
Cooper is not entitled to relief on his claim that he was denied an opportunity to
represent himself because he did not seek to represent himself after Brose began
representing him until mid-trial, and then declined to do so when given the
opportunity;138 (2) trial counsel did not concede guilt and was not ineffective in
133
Id. at 23-24.
134
Id. at 24-26.
135
Id. at 26-29.
136
Id. at 29-32.
137
D.I. 160.
138
Id. at 8-10.
18
electing not to pursue a baseless entrapment defense;139 (3) the fact the Cooper
appeared in prison clothes temporarily does not entitle him to relief;140 (4) trial
counsel was not ineffective in electing not to make futile or improper objections,
pursue a Franks hearing or raise arguments on appeal that lacked merit;141 and (5)
trial counsel was not ineffective in failing to call Braxton as a witness in light of
Cooper’s own desire not to call him.142 Turning to Cooper’s pro se Motion and
Levin’s Amended Motion, the State briefly addresses each claim and characterized
them as either redundant or without merit.143
IV. STANDARD OF REVIEW
Rule 61 is the exclusive remedy for those “in custody under a sentence of
this court seeking to set aside the judgment of conviction…”144 This Rule balances
finality “against … the important role of the courts in preventing injustice.”145
Before addressing the merits of a defendant’s motion for postconviction
relief, the Court must first apply the procedural bars of Superior Court Criminal
Rule 61(i).146 If a procedural bar exists, then the Court will not consider the merits
139
Id. at 10-12.
140
Id. at 12-13.
141
Id. at 13-25.
142
Id. at 26-27.
143
Id. at 27-31.
144
Super. Ct. Crim. R. 61(a)(1).
145
Zebroski v. State, 12 A.3d 1115, 1120 (Del. 2010) (citation omitted).
146
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
19
of the postconviction claim.147 Under Delaware Superior Court Rules of Criminal
Procedure, a motion for postconviction relief can be barred for time limitations,
repetitive motions, procedural defaults, and former adjudications. A motion
exceeds time limitations if it is filed more than one year after the conviction
becomes final or if it asserts a newly recognized, retroactively applied right more
than one year after it was first recognized.148 A second or subsequent motion is
repetitive and therefore barred.149 The Court considers a repetitive motion only if
the movant was convicted at trial and the motion pleads with particularity either:
(1) actual innocence;150 or (2) the application of a newly recognized, retroactively
applied rule of constitutional law rendering the conviction invalid.151 Grounds for
relief “not asserted in the proceedings leading to the judgment of conviction” are
barred as procedurally defaulted unless the movant can show “cause for relief” and
“prejudice from [the] violation.”152 Grounds for relief formerly adjudicated in the
case, including “proceedings leading to the judgment of conviction, in an appeal, in
a post-conviction proceeding, or in a federal habeas corpus hearing” are barred.153
147
Id.148
Super. Ct. Crim. R. 61(i)(1).
149
Super. Ct. Crim. R. 61(i)(2).
150
Super. Ct. Crim. R. 61(d)(2)(i).
151
Super. Ct. Crim. R. 61(d)(2)(ii).
152
Super. Ct. Crim. R. 61(i)(3).
153
Super. Ct. Crim. R. 61(i)(4).
20
Additionally, “[t]his Court will not address claims for post-conviction relief that
are conclusory and unsubstantiated.”154
To successfully bring an ineffective assistance of counsel claim, a claimant
must demonstrate: (1) that counsel’s performance was deficient; and (2) that the
deficiencies prejudiced the claimant by depriving him or her of a fair trial with
reliable results.155 To prove counsel’s deficiency, a defendant must show that
counsel’s representation fell below an objective standard of reasonableness.156
Moreover, a defendant must make concrete allegations of actual prejudice and
substantiate them or risk summary dismissal.157 “[A] court must indulge in a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.”158 A successful Sixth Amendment claim of
ineffective assistance of counsel requires a showing “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”159 An inmate must satisfy the proof
requirements of both prongs to succeed on an ineffective assistance of counsel
154
State v. Guinn, 2006 WL 2441945, at *4 (Del. Super. Aug 16, 2021). See also
Gattis v. State, 697 A.2d 1174, 1178-79 (Del. 1997); Younger, 580 A.2d at 556;
State v. McNally, 2011 WL 7144815, at *5 (Del. Super. Nov. 16 2011); State v.
Wright, 2007 WL 1982834, at *1 n.2 (Del. Super. July 5, 2007).
155
Strickland v. Washington, 466 U.S. 668, 688 (1984).
156
Id. at 667-68.
157
Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
158
Strickland, 446 U.S. at 689.
159
Id. at 694.
21
claim. Failure to do so on either prong will doom the claim and the Court need not
address the other.160
In the appellate context, “[t]he [d]efendant must first show that his counsel
was objectively unreasonable in failing to find arguable issues on appeal – that is,
that counsel unreasonably failed to discover nonfrivolous issues and to file a merits
brief raising them.”161 Appellate counsel “need not (and should not) raise every
nonfrivolous claim, but rather may select from among them in order to maximize
the likelihood of success on appeal.”162 Nonetheless, it is “still possible to bring a
Strickland claim based on counsel’s failure to raise a particular claim, but it is
difficult to demonstrate that counsel was incompetent.”163 A defendant faces a
tougher burden of “showing that a particular nonfrivolous issue was clearly
stronger than issues that counsel did present” where appellate counsel filed a
merits brief, than in the case where appellate counsel filed a no merit brief.164
Further, Cooper must still show prejudice, “That is, [the defendant] must show a
160
Strickland, 466 U.S. at 697; Ploof v. State, 75 A.3d 811, 825 (Del. 2013)
(“Strickland is a two-pronged test, and there is no need to examine whether an
attorney performed deficiently if the deficiency did not prejudice the defendant.”).
161
Neal v. State, 80 A.3d 935, 946 (Del. 2013) (quoting Smith v. Robbins, 528 U.S.
259, 285 (2000)).
162
Id. (citing Smith, 528 U.S. at 288).
163
Id.164
Id.22
reasonable probability that, but for his counsel’s unreasonable failure [to raise a
clearly stronger issue], he would have prevailed on his appeal.”165
V. DISCUSSION
This motion is a timely first motion under Rule 61. Cooper claims multiple
instances of ineffective assistance of counsel, prosecutorial misconduct, and
judicial abuse of discretion. In his pro se Motion, he states that his prosecutorial
misconduct and judicial abuse of discretion claims are not procedurally barred
because they could not or have not been raised until now.166 Levin’s Amended
Motion merely asserts, without elaboration, that the prosecutorial misconduct and
judicial abuse of discretion claims are not barred because they were not raised
previously.167 The Amended Motion does not address the procedural default bar of
Rule 61(i)(3). Sparaco’s Supplemental Brief does not address any of the bars to
relief of Rule 61(i) at all.168 The State concedes that Cooper’s claims of
ineffectiveness are not procedurally barred,169 but that “Cooper’s substantive
claims are procedurally barred under Rule 61(i)(3).”170
The bar to relief of Rule 61(i)(3) may be avoided if the movant shows: “(A)
Cause for relief from the procedural default and (B) Prejudice from violation of the
165
Id. at 947 (quoting Smith, 528 U.S. 285).
166
D.I. 120.
167
D.I. 135 at 63, 69.
168
D.I. 154.
169
State’s Resp., D.I. 160, at n. 6 and associated text.
170
Id. at 4.
23
movant’s rights.”171 Further, the bar is inapplicable to a claim that satisfies the
pleading requirements of Rule 61(d)(2)(i) or (2)(ii).172 Rule 61(d)(2)(i) speaks to
pleading actual innocence in fact claims. No such claim is pled here. Rule
61(d)(2)(ii) requires a movant to plead “with particularity that a new rule of
constitutional law, made retroactive to cases on collateral review by the United
States Supreme Court or the Delaware Supreme Court, applies to the movant’s
case and renders the conviction … invalid.”173 Cooper has not met this pleading
requirement either. Cooper admits that he failed to raise his complaints of
prosecutorial misconduct and judicial abuse of discretion on direct appeal, “as
required by the rules of this court[.]”174 He attributes this failure to counsel’s
ineffectiveness.175 To the extent Cooper has shown cause for his failure to raise
these claims before by alleging ineffective assistance of counsel, the Court assesses
those claims through that lens.
The Court first addresses the claims as set out in the Supplemental Brief
submitted by current postconviction counsel. Then, the Court will address the
claims set out in Cooper’s pro se motion and Levin’s Amended Motion which are
incorporated in the Supplemental Brief by reference.
171
Super. Ct. Crim. R. 61(i)(3).
172
Super. Ct. Crim. R. 61(i)(5).
173
Super. Ct. Crim. R. 61(d)(2)(ii).
174
Def.’s pro se Mot., D.I. 120.
175
Id.
24
A. Counsel’s Failure to Submit Cooper’s Requests to Proceed Pro Se does
not Entitle Cooper to Postconviction Relief.
Cooper argues that “he was deprived of effective assistance of counsel when
Attorney John S. Edinger failed on numerous occasions to properly file [his]
motions to proceed pro se, resulting in [him] being unsatisfactorily represented.”176
Cooper claims that “[h]ad Attorney Edinger properly filed [his] motion to proceed
pro se, [he] would have exercised his constitutional right to proceed pro se.”177
Cooper ultimately claims that due to his “intimate[] familiar[ity] with the facts of
the case, … the result would probably have been different had that motion be[en]
presented and granted by the court.”178
The State presented several counterarguments. First, it argues that Cooper’s
requests to proceed pro se were mooted once new counsel, Brose, was
appointed,179 points out that no requests were made during Brose’s
representation,180 that Cooper never voiced displeasure with Brose’s
representation,181 and that despite the Court’s “willingness to engage in a colloquy
176
Def.’s Am. Mot., at 31, D.I. 135.
177
Id. at 33.
178
Def.’s Supp. Br., at 11, DI 154.
179
State’s Resp., at 10, D.I. 160.
180
Id. at 8–9.
181
Id. at 9.
25
with Cooper to consider whether he wished to proceed pro se,” it was Cooper who
declined.182
No attempt has been made to explain Edinger’s failure to submit Cooper’s
requests to proceed pro se to the Court. Accordingly, Cooper has satisfied
Strickland’s performance prong. However, the Court finds that Cooper has not
established that there is a substantial likelihood that, had the Court had the
opportunity to conduct the appropriate colloquy with him, he would have elected to
represent himself.
In Faretta v. California, the United States Supreme Court held that a
defendant in a State criminal proceeding may proceed pro se if the defendant
knowingly, intelligently, and voluntarily waives the right to counsel. 183 Once a
defendant clearly and unequivocally asserts his right to self-representation, the trial
court must proceed with a hearing to make that determination.184 Waiver of the
right to counsel “depends in each case ‘upon the particular facts and circumstances
surrounding that case, including the background, experience, and conduct of the
182
Id. (citations omitted).
183
Faretta v. California, 422 U.S. 806, 835 (1975).
184
Morrison v. State, 135 A.3d 69, 73 (Del. 2016) (citing Faretta, 422 U.S. 826-
32; Smith v. State, 996 A.2d 786 (Del. 2010); Briscoe v. State, 606 A.2d 103(Del.
1992)).
26
accused.’”185 The trial judge must “make a thorough inquiry and ... take all steps
necessary to insure the fullest protection of this constitutional right.”186
In United State v. Welty, the Third Circuit held that “at a minimum, to be
valid, a [defendant's] waiver must be made with an apprehension of the nature of
the charges, the statutory offenses included within them, the range of allowable
punishments thereunder, possible defenses to the charges and circumstances in
mitigation and all other facts essential to a broad understanding of the whole
matter.”187 The Third Circuit further noted that “[a] judge can make certain that an
accused's professed waiver of counsel is understandingly and wisely made only
form a penetrating and comprehensive examination of all the circumstances, and
only after bringing home to the defendant the perils he faces in dispensing with
legal representation.”188 The Third Circuit then enunciated guidelines for a trial
judge to use in determining whether a defendant is knowingly and intelligently
waiving the Sixth Amendment right to counsel. The trial judge should advise the
defendant, for example:
185
Id. (citing Edwards v. Arizona, 451 U.S. 477, 482 (1981) (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938))).
186
Id. (quoting United states v. Salemo, 61 F.3d 214, 219 (3d. Cir. 1995)).
187
United States v. Welty, 674 F.2d 185, 189 (3d. Cir. 1982).
188
Id.
27
(1) that the defendant will have to conduct his defense in accordance with
the rules of evidence and criminal procedure, rules with which he may not be
familiar;
(2) that the defendant may be hampered in presenting his best defense by his
lack of knowledge of the law;
(3) that the effectiveness of his defense may well be diminished by his dual
role as attorney and accused;
(4) the nature of the charges;
(5) the statutory offenses included within them;
(6) the range of allowable punishments thereunder;
(7) possible defenses to the charges and circumstances in mitigation thereof;
and
(8) all other facts essential to a broad understanding of the whole matter.189
The Delaware Supreme Court has adopted the Welty guidelines.190
After corresponding with the Court while Edinger represented him, Cooper
did not bring his desire to represent himself to Brose’s attention or to the Court’s
attention until the State had presented its case at trial. Cooper could have raised
the issue with the Court during the suppression hearing he attended, but did not.191
189
Id.
190
Briscoe, 606 A.2d at 106-07.
191
D.I. 55.
28
He could have raised the issue prior to jury selection, which, as the State notes
occurred on a different date than the start of trial, but did not.192 In fact, it appears
that Cooper was cooperating with Brose. In a letter to Brose dated November 20,
2018, Cooper offers his thoughts on severance and other issues. 193 He concludes
the letter by saying, “This is my last request also to review evidence and I would
like ‘all’ my reports by the State or I would like to represent myself…”194 The
conditional nature of this statement certainly implies that Cooper was content to be
represented by Brose
In addition to Cooper’s failure to press the issue during Brose’s
representation of him, Cooper’s conduct leads the Court to believe that he would
not have proceeded pro se if given the opportunity. First, after the Court was made
aware of Cooper’s professed desire to proceed pro se, it endeavored to comply
with its obligation to conduct a hearing – a hearing which potentially would have
resulted in Cooper representing himself for the balance of his trial.195 Cooper,
192
State’s Resp., at 9, D.I. 160.
193
Hg., Apr. 17, 2023, Def. Ex. 2.
194
Id. (emphasis added).
195
Trial Tr., Feb. 27, 2019, Volume I, at 21:3–18 (emphasis added).
THE COURT: … So my question to you today is: How do you want to
proceed?
THE DEFENDANT: How do you mean how do we want to proceed? You
said I can’t [proceed pro se], so we are here.
THE COURT: Well, if you want to finish the trial, I will talk to you about
that.
THE DEFENDANT: Well, I would proceed pro se if I could start all over
29
however, declined the Court’s offer to discuss the issue.196 Next, after trial, but
before sentencing, Cooper moved to proceed pro se.197 After some discussion with
the Court prior to sentencing, Cooper withdrew that motion.198
After his direct appeal was decided, Cooper sought the assistance of counsel
in pursuing this postconviction relief motion.199 Levin was appointed for that
purpose.200 Cooper then moved to disqualify Levin based on a conflict of interest
due to Levin’s representation of a client involved in one of Cooper’s federal
matters.201 Levin responded to the motion agreeing that, after investigating the
alleged conflict, he was conflicted.202 Cooper had an apparent change of heart and
sought to abandon his disqualification motion.203 Levin responded that, in his
again.
THE COURT: You can’t.
THE DEFENDANT: Okay. Well, we have to go with Mr. Brose then. I
don’t want to, but we have to. He started the case. He might as well finish it.
196
Id. Cooper claims confusion as to what exactly the Court was offering. The
Court disagrees. The record is abundantly clear that it was offering Cooper the
option to proceed pro se for the remainder of trial. Id.197
D.I. 81.
198
D.I. 84.
199
Mot. for Appointment of Counsel, D.I. 121.
200
D.I. 127.
201
D.I. 132.
202
D.I. 136.
203
D.I. 137.
30
opinion, the conflict was one which could not be waived.204 Ultimately, despite
Cooper’s vacillation, the Court granted Cooper’s motion to disqualify Levin.205
After Levin’s departure, current counsel, Sparaco, was appointed to
represent Cooper.206 While all seems well with that relationship now, it did have
its moments in the past. On December 2, 2022, Sparaco moved to withdraw as
counsel.207 That motion recites Cooper’s dissatisfaction with Sparaco’s proposed
supplemental amended postconviction relief motion expressed to Sparaco, his
desire to represent himself expressed to conflicts counsel, and his recantation of
that desire expressed to Sparaco. 208 As a result, Sparaco’s motion to withdraw
requested that the Court hold a Faretta hearing.209 The Court held a hearing on the
motion to withdraw and denied it.210 After the hearing, Cooper filed a Motion for
Disqualification of Counsel/Motion to Stay211 and an amendment to that motion.212
Finally, Cooper wrote to the Court on February 2, 2023 withdrawing both the
motion for disqualification and the amended motion for disqualification.213 He
wrote, “On 12/12/2022 a hearing (Motion to Withdraw by Richard Sparaco) was
204
D.I. 138.
205
D.I. 141.
206
D.I. 146.
207
D.I. 150.
208
Id.209
Id.210
D.I. 151.
211
D.I. 153.
212
Def.’s Amend. Mot. for Disqualification of Counsel/Mot. to Stay, D.I. 156.
213
D.I. 157.
31
conducted before Your Honor and a lot of my allegations in my motion that’s
before you were heard at that hearing which Your Honor denied. I apologize for
any inconvenience and I seek to withdraw mention motions. Thank You!”214
The Court finds it probable that had the Court conducted the Welty inquiry,
and brought home to Cooper “the perils he face[d] in dispensing with legal
representation” as required by Welty, he would not have persisted in seeking to
represent himself. Those perils include that Cooper: (1) would have to conduct his
defense in accordance with the rules of evidence and criminal procedure; (2) may
be hampered by his lack of knowledge of the law; and (3) may have the
effectiveness of his defense diminished by his dual role as attorney and
defendant.215 Given Cooper’s oft expressed dissatisfaction with his out of state
attorneys’ purported unfamiliarity with Delaware law and procedure,216 it is
doubtful Cooper would have been willing to undertake self-representation with
even less familiarity with Delaware law and procedure than his appointed counsel.
Other disabilities of which the Court would have advised Cooper are the inherent
difficulties in litigating while incarcerated, such as limited access to a law library
and little to no investigative resources.
214
Id.215
Welty, 674 F.2d at 189.
216
See, e.g., Def.’s Resp. to Mot. to Withdraw as Counsel for Def., D.I. 152.
32
In its many interactions with Cooper, the Court found him to be an
obviously intelligent man. Thus, had the Court conducted a Welty inquiry, Cooper
would have recognized the wisdom of being represented by counsel and the perils
of self-representation. The Court is convinced that he would have chosen to be
represented by counsel.217 After carefully reviewing the record and considering the
Court’s extensive personal interactions with Cooper, it is clear to the Court that he
has established a pattern of occasionally raising the specter pro se representation,
but, when confronted with the reality of that undertaking, exercises good judgment
and backs away. Accordingly, based on what Cooper said, did, and did not do, the
Court finds that Cooper has failed to meet his burden of showing there is a
reasonable probability that, but for Edinger’s failure to bring his pro se requests to
the attention of the Court, Cooper would have chosen to represent himself.
Additionally, the Court finds that Cooper abandoned his attempts to
represent himself after Edinger was no longer his attorney until the State concluded
its case at trial. The genesis of Cooper’s initial request to represent himself was his
dissatisfaction with Edinger’s representation – “I hold Mr. Edinger to be
incompetent to represent me in this matter and I respectfully ask the Court that I be
217
The Court discounts Cooper’s testimony to the contrary at the hearing on this
motion as self-serving. At that same hearing, he conceded that if given a new trial
he may not actually proceed pro se. Specifically, and in response to the Court’s
direct inquiry into what he would do should it grant a new trial, Cooper stated that
he would look into retaining private counsel, one who would align with his
objectives.
33
allowed to proceed pro se.”218 Cooper’s correspondence to the Court seeking to
represent himself ceased when Edinger left and Brose entered. In fact, Cooper
never asked Brose to raise the issue with the Court or advise him that he wanted to
proceed pro se.219 As noted, if Cooper truly wanted to represent himself, he had
ample opportunity to raise the issue directly with the Court prior to trial, but never
did. The Court concludes that Cooper abandoned his attempt to represent himself
at the time Edinger ceased representing him because the reason he wanted to do so
no longer existed.
B. Counsel’s Discussion of the Entrapment Defense During Opening
Statements does not Entitle Cooper to Postconviction Relief.
Cooper contends that despite conceding factual guilt in opening statement,
Brose failed to put on an entrapment defense.220 He claims this was a serious error
because Brose was obligated to abide by Cooper’s objective “to maintain innocence
of the charged criminal acts and pursue an acquittal[.]”221 As such, he claims that
this failure resulted in “[him being] irreparably prejudiced[,]” justifying relief.222
218
D.I. 7.
219
Trial. Tr., Feb. 27, 2019, Volume I, at 24:12-17.
MR. BROSE: And one more thing, Your Honor, for the record, Mr. Cooper
has never indicated to me – he has been upset with my service from time to
time. He has never indicated to me that he wanted to proceed pro se or I
should put forward a motion pro se.
220
Def.’s Am. Mot., D.I. 135, at 43; Def.’s Supp. Br., at 11–12, D.I. 154.
221
Def.’s Supp. Br., at 12, D.I. 154.
222
Def.’s Am. Mot., at 44, D.I. 135.
34
The State counters that “Cooper’s insistence that he was entrapped … is
pure fiction[,]”223 and though the defense was ultimately abandoned, he benefitted
from counsel putting the idea in the jurors’ minds.224 Prejudice, therefore, cannot
exist. It also emphasizes that in addition to entrapment being “thoroughly litigated
pre-trial,”225 the Court also engaged in a colloquy with Cooper informing him of
the Pandora’s Box this defense risked opening, including his assuming a burden
that he would not otherwise have, and potentially opening the door to State’s
rebuttal. 226
As pointed out by the State, “[t]rial counsel was not ineffective because
Cooper wisely abandoned this strategy during trial[.]”227 Trials are fluid, so while
Cooper initially “want[ed] to go down with the entrapment defense or not go down
at all,”228 this evidently changed during the course of trial. Cooper chose not to
call co-defendant Braxton.,229 a figure he claimed was willing and able to
corroborate his entrapment defense and who also exercised his right not to
223
State’s Resp., at 11, D.I. 160.
224
Id.225
Id. at 10 (citing D.I. 60).
226
Id. at 10–12 (citing Trial Tr., Feb. 27, 2019, Volume I, at 25:13–26:12).
227
Id.228
Trial Tr., Feb. 21, 2019, at 31:16–18.
229
Trial Tr., Feb. 27, 2019, Volume I, at 37:1–16.
35
testify.230 Cooper cannot now claim prejudice from his own decisions which were
all made after consultation with counsel.
Second, the jury was instructed that it must reach its verdict “based solely
and exclusively on the evidence in the case[.]”231 and to not consider the attorneys’
comments as evidence.232 There is no reason to believe that the jury was
influenced by comments of counsel that were not evidence.233 Cooper, therefore,
has not established prejudice because there is no reasonable probability that the
result of his trial would have been different.
C. Cooper’s Decision to Remain in Prison Clothes During Jury Selection
does not Entitle Him to Postconviction Relief.
Cooper argues that “trial counsel had an obligation to advise him of the
clearly negative inferences [being in prison clothing] would present to the jury and
the degree of prejudice that would fall upon the defendant, despite his
concession.”234 In support of his argument, Cooper points to Estelle v. Williams235
230
Id. at 39:22–40:1.
231
Trial Tr., Feb. 27, 2019, Volume I, at 105:2–3.
232
Id. at 159:1–4 (“[w]hile it is very important that you listen to and consider what
the attorneys say during the trial, what they say is not evidence.”); id. at 160:23–
161:2 (“[s]tatements and arguments of counsel are not evidence in the case, unless
made as an admission or stipulation of fact.”)
233
“Juries are presumed to follow the court’s instruction.” Phillips v. State, 154
A.3d 1146, 1157 (Del. 2017).
234
Def.’s Supp. Br., at 15, D.I. 154.
235
425 U.S. 501 (1976).
36
and McGlotten v. State.236 He emphasizes Estelle’s prohibition on compelling a
defendant to appear in prison clothing (while conceding that the Supreme Court of
the United States denied relief on the basis of the defendant failing to object)237 and
McGlotten’s statement that “counsel should have advised McGlotten to wear
civilian clothing if he could obtain it…”238 Cooper also claims that counsel erred
in declining the Court’s offer to instruct the jury not to consider his clothing in
determining his guilt.239
The State responds that Cooper, after consulting with counsel, elected to
forego a jury instruction on this exact issue, hoping to avoid bringing more
attention to the issue. 240 It also emphasizes that the Court instructed the jury on
the presumption of innocence with the understanding that “[j]uries … follow the
court’s instruction.”241 For the State, a temporary exposure to the jury in prison
clothes does not entitle Cooper to postconviction relief.242
Once the Court became aware of Cooper wearing prison clothes, not only
did it suggest to counsel that he could go to Defense Services to get street
236
26 A.3d 214 (Del. 2011) (TABLE).
237
Def.’s Supp. Br., D.I. 154 at 16–17 (citing Estelle, 425 U.S. at 512–13)
238
Id. at 17 (citing McGlotten, 26 A.3d).
239
Id. at 17–18 (citation omitted).
240
State’s Resp., at 12-13 (quoting Trial Tr., Feb. 21, 2019, at 74:4–5; “[w]e prefer
not to have the question asked.”), D.I. 160.
241
Id. at 13 (quoting Phillips v. State, 154 A.3d 1146, 1157 (Del. 2017)).
242
Id.37
clothes,243 it also told counsel to confirm how Cooper wanted to proceed.244
Despite these attempted safeguards, Cooper refused Defense Service’s clothing245
and informed the Court that he did not want to wear street clothes despite their
availability.246 The Court is not in the business of forcing street clothing on
defendants and it properly instructed the jury on its duty to return verdicts solely
on the evidence presented247 and on the presumption of innocence.248
Cooper’s decision to wear prison clothing during jury selection was
voluntary and free of any Estelle-like compulsion. Any potential prejudice that his
243
Trial Tr. Feb. 21, 2019, at 2:19–4:2.
244
Id. at 71:23–72:14.
THE COURT: The whole concept of people dressed in prison clothes sort of
begs the obvious because you have two correctional officers standing behind
moving with him wherever he goes if he were to testify.
It is pretty obvious he is incarcerated in any case where a defendant is
incarcerated.
The point is it seems to me to be a minor one, but there we do have this case
law that says we have to be solicitous of defendant’s desire in that area. So,
Mr. Brose, when we go back in the courtroom and if you can just talk, ask
him briefly that question.
BROSE: Okay.
245
Id. at 45:14–18.
246
Id. at 45:21–46:2.
THE DEFENDANT: Yes, Your Honor. [Brose is] absolutely right [that
Cooper preferred to wear prison clothes]. Matter of fact, I didn’t ask him to contact
family members or anything. I let the jurors see me like this. This is what it is. This
is me. Id. at 46:20–23.
THE COURT: It’s okay with you to go ahead and pick a jury with you
dressed
in those [prison] clothes?
THE DEFENDANT: Yes.
247
Trial Tr., Feb. 27, 2019, Volume I, at 105:2–3.
248
Id. at 156:3–5.
38
decision caused was cured with the Court’s jury instructions.249 The Court has no
reason to believe that Brose did not follow its instruction to solicit Cooper’s desires
in this area250 before choosing to forego an instruction.251 Nevertheless, Brose’s
decision to forego an instruction in order not to call further attention to Cooper’s
clothing falls well within Strickland’s standard of objectively reasonable
professional assistance. In considering all the above, the Court will not disrupt the
jury’s verdicts because Cooper now regrets his choice of clothing.
D. None of Cooper’s Allegations Concerning Counsel’s Approach to
Meaningfully Testing the State’s Case and Safeguarding Cooper’s Sixth
and Fourteenth Amendment Rights Entitle Him to Postconviction
Relief.
Cooper alleges five ways in which counsel “failed to subject the State’s case
to meaningful adversarial testing and was otherwise ineffective in violation of
defendant’s Sixth and Fourteenth Amendment rights.”252 He contends that Brose
failed to: (1) object to Special Agent Haney testifying on the ultimate issue of
249
“Juries are presumed to follow the court’s instruction.” Phillips, 154 A.3d at
1157.
250
See Trial Tr. Feb. 21, 2019, at 72:9–19.
THE COURT: … there we do have this case law that says we have to be
solicitous of defendant’s desire in [terms of clothing]. So, Mr. Brose, when
we go back in the courtroom and if you can just talk, ask him briefly that
question.
MR. BROSE: Okay.
THE COURT: And let me know what his response is, and we’ll take it from
there.
MR. BROSE: All right.
251
Id. at 74:4–5.
252
Def.’s Supp. Br., at 18, D.I. 154.
39
Cooper’s involvement in the drug trade organization;253 (2) move for a Franks
Hearing;254 (3) to safeguard his Fifth Amendment right to remain silent by not
objecting to the Court’s ruling on disclosing the confidential informant’s
identity;255 (4) raise on appeal the issue of the admission in evidence of
codefendants’ pleas;256 and (5) raise at trial and on direct appeal the issue of the
violation of Cooper’s right to a speedy trial.257 The State denies each allegation.258
1. Ultimate Issue.
Cooper claims that Brose was ineffective when he failed to object to Special
Agent Haney discussing Cooper’s alleged role in the drug trade organization.259
Cooper claims that Special Agent Haney, testifying as a lay witness, was not
qualified to present his opinion on the ultimate issue under Delaware Rules of
Evidence 602 and 701.260 He claims that this improper testimony “certainly had
the capability of swaying the jury in favor of the State and the result would have
been different had this evidence not been allowed.”261
253
Id. at 19–21.
254
Id. at 21–23.
255
Id. at 23–24.
256
Id. at 24–26.
257
Id. at 26–29.
258
State’s Resp., at 13–25, D.I. 160.
259
Def.’s Supp. Br., at 19, D.I. 154.
260
Id. at 19–21.
261
Id. at 21.
40
The State answers that Special Agent Haney was testifying as an expert and
that counsel was informed of this designation in advance of trial.262 It also notes
that this argument “should be considered moot” because Cooper was acquitted of
Conspiracy to Commit Criminal Racketeering, the crime which Special Agent
Haney had been discussing.263
This claim fails both prongs of Strickland. Special Agent Haney’s testimony
was not objectionable as improper lay testimony on the ultimate issue since he was
a designated expert. Thus, Brose’s failure to object did not demonstrate
performance deficiency. Further, Cooper was acquitted on the charge to which
Special Agent Haney’s opinion related. Therefore, Cooper suffered no prejudice.
2. Franks Hearing.
Referencing Cooper’s Certification in Support of Postconviction Relief and
Levin’s Amended Motion, Cooper’s Supplemental Brief contends that Brose was
ineffective in failing to request a Franks hearing.264 Under Franks v. Delaware, a
defendant may request such a hearing in cases of alleged falsehoods used by law
enforcement for establishing probable cause.265 Similarly, a defendant may request
262
State’s Resp., at 14, D.I. 160.
263
Id.
264
Def.’s Supp. Br. at 21-23, D.I. 154.
265
Franks v. Delaware, 438 U.S. 154 (1978).
41
what is known as a “reverse Franks hearing” where the police deliberately or
recklessly omit information material to determining probable cause.266
Levin’s Amended Motion identifies certain statements or information in
specific paragraphs of identical probable cause affidavits in support of search
warrants for Unit 8 and Apartment 1 that Cooper alleges contain false
information.267 The State addresses each claimed falsehood or omission and
argues that “[c]learly, all of Cooper’s attempts to undermine the confidential
informant and the warrant would have failed. Trial Counsel cannot be deemed
ineffective for failing to bring a Franks motion that would have lost.” 268
The Court agrees with the State. After carefully reviewing the claimed
falsehoods or omissions, the Court finds that they either were not false and/or did
not affect the determination of probable cause. In paragraph 18 of the affidavit
Cooper challenges the statement that Special Agent Haney was contacted by CS5
in December and that CS5 advised that the “shop was somewhere along the
Governor Printz Boulevard.”269 Neither of the challenged statements is false, and
both are de minimus. The State has submitted documentation that Special Agent
Haney was contacted by CS5 in December 2017.270 Further, the shop at Unit 8 on
266
Sisson v. State, 903 A.2d 288, 296 (Del. 2006).
267
Def.’s Am. Mot., at 34-39, D.I. 135.
268
State’s Resp., at 18– 19; 23-24, D.I. 160.
269
Def.’s Am. Mot., at 34, D.I. 135.
270
State’s Resp, Ex. D, D.I. 160.
42
Downing Drive is indeed “off of” Northeast Boulevard which becomes Governor
Printz Boulevard once it leaves the City of Wilmington.
Cooper alleges paragraph 25 is misleading in that it states that Special Agent
Haney met with CS5 but failed to mention that Officer Mark Hogate was
present.271 He also claims that Special Agent Haney illegally place a wire on CS5
to allow him to illegally record his conversation with Cooper. Officer Hogate’s
presence or absence at the meeting is irrelevant to a determination of probable
cause. The State explains that CS5 consented to the recording, FBI approval had
been obtained, and Delaware is a “one-party consent” state.272 Cooper cites
nothing to the contrary to establish the recording was illegal.
Cooper alleges that paragraph 26 contains numerous false statements, mostly
involving surveillance of him.273 The State provides detailed rejoinders to each
claimed falsity. Cooper surmises that law enforcement employed illegal GPS
monitoring in conducting its surveillance.274 However, the State describes how
that surveillance was conducted without GPS by using various police officers as
well as a helicopter.275 It is plain from the State’s submission that had a Franks
271
Def.’s Amend. Mot., at 35, D.I. 135.
272
State’s Resp. at 18, D.I. 160.
273
Def.’s Am. Mot. at 35-37, D.I. 135.
274
Id.275
State’s resp., at 18-20, D.I. 160.
43
hearing been held, the State would have been able to refute all of Cooper’s
challenges to the contents of paragraph 26.
Finally, Cooper alleges that paragraph 28 contains false information
concerning an undercover officer’s observation of him purchasing gun cleaning
equipment at a Walmart store.276 Specifically, he claims that this information was
unknowable to the affiant when he applied for the search warrants and is
inconsistent with the surveillance log.277 The State responds with the simple
explanation that Cooper was observed making the purchase by an undercover
officer who called the affiant with his observation.278 The affiant then included
the information in the affidavit.279 Again, the Court finds no reason to believe that
this claim would have succeeded at a Franks hearing.
The Court finds further support for its finding that a Franks hearing would
have been fruitless in Cooper v. State.280 Specifically, as part of its analysis, the
Delaware Supreme Court considered CS5’s reliability and the extent to which
police investigations corroborated his claims.281 The Court ultimately found that
“the information provided by CS5 was substantially corroborated by independent
276
Def.’s Am. Mot., at 37-39.
277
Id. at 38.
278
State’s Resp., at 20-21.
279
Id.
280
Cooper, 228 A.3d 399.
281
Id. at 405.
44
police surveillance and information.”282 It also found that the issuing judge was
justified in finding CS5 (and his/her supplied information) to be reliable.283
The Court finds that Brose was not ineffective in failing to request a Franks
hearing. There is no reasonable probability that had a Franks hearing been held,
and all of Cooper’s allegations fully litigated, that the hearing would have resulted
in the suppression of evidence seized from the execution of the search warrants.
3. Fifth Amendment and Disclosure of Confidential Informant’s
Identity.
Cooper argues that Brose was ineffective for failing to object to the Court’s
direction that Cooper either must testify or otherwise present an entrapment
defense before it would order disclosure of the confidential informant’s identity.284
He claims that D.R.E. 509’s shield on disclosure does not apply in this case
because Cooper was pursuing an entrapment defense, claiming that the confidential
informant’s involvement in the controlled buy made him/her “an actual party to the
illegal transaction.”285
The State responds that “[Cooper’s] argument mischaracterizes the
record[,]” emphasizing that counsel did file to reveal the confidential informant’s
282
Id.283
Id.284
Def.’s Am. Mot., at 52–54, D.I. 135; Def.’s Supp. Br., at 23–24, D.I. 154.
285
Def.’s Am. Mot., at 53, D.I. 135. See State v. Flowers, 316 A.2d 563, 567 (Del.
Super. 1973); Butcher v. State, 906 A.2d 798, 802–03 (Del. 2006).
45
identity.286 It claims that the confidential informant’s role changed after it dropped
all of the charges in which the informant made controlled purchases from Cooper,
shifting from being a participant in the crime to only helping the State establish
probable cause for a search.287 The State argues that the Court followed
appropriate disclosure protocols and, after a “thorough colloquy on the question of
testifying in his own defense,” Cooper himself decided that he would not
testify.288
The Court did not prevent Cooper from testifying, nor did it prevent him
from presenting an entrapment defense. It merely conditioned disclosure of the
informants identity on presenting an entrapment defense by either testifying “or
somehow else present[ing] an entrapment defense.”289 Cooper’s invocation of the
entrapment defense in opening, without supporting it through the presentation of
evidence, was insufficient to trigger disclosure. Simply put, Cooper never satisfied
any of the “couple of contingencies” the Court set for disclosure to be triggered.290
He never presented an entrapment defense, either by testifying himself or
otherwise offering any evidence to support such a defense. Further, the
confidential informant was not a party to any of the illegal acts with which Cooper
286
State’s Resp., at 24 (citing D.I. 46), D.I. 160.
287
Id.288
Id.289
Trial Tr., Feb. 25, 2019, at 36:20–22 (emphasis added).
290
See id. at 37:5–7.
46
was charged. The informant was used merely to establish probable cause for
search warrants. In that role disclosure is not triggered under Flowers.
4. Failure to Appeal Admission of Codefendants’ Plea Agreements.
Relying on Allen v. State,291 Cooper argues that trial counsel was ineffective
in not objecting to the lack of a jury instruction circumscribing the purposes for
which the jury could consider the pleas and that appellate counsel was ineffective
in failing to raise this issue on direct appeal.292 He argues that due to these failures,
Cooper “was denied the right to a fair trial, the conviction and sentences should be
reversed, and the matter remanded for a new trial.”293
The State counters that this matter was not only thoroughly discussed before
presentation to the jury,294 but that the Court also “carefully limited the use of the
plea agreements by codefendants for a proper purpose – to establish predicate acts
of the criminal enterprise that were not acts by Cooper.”295 In considering the
outcome of the trial, the State also argues that the matter became moot because
Cooper was acquitted of the conspiracy to commit racketeering charge, negating
any prejudice argument.296
291
878 A.2d 447 (Del. 2005).
292
Def.’s Supp. Br., at 24–26, .D.I. 154.
293
Id. at 26.
294
State’s Resp., D.I. 160, at 24 (citing Trial Tr., Feb. 26, 2019, at 98:10–131:12).
295
Id. at 25; Trial Tr., Feb. 26, 2019, at 199:8–201:6.
296
State’s Resp., at 25, D.I. 160.
47
The State is correct. Brose voiced concern about the pleas’ admission,297
resulting in several discussions on this exact issue.298 After making editing
recommendations to the State’s proposed limiting instruction,299 Brose was
satisfied with the instruction.300 In the event, the Court gave a limiting instruction
directing the jury to consider the plea agreements only in connection with the
State’s attempt to prove the predicate acts necessary to establish a criminal
enterprise.301 It also cautioned the jury that the fact that some individuals had
entered into plea agreements was not evidence that Cooper committed any of the
crimes with which he was charged.302 Importantly, Cooper was acquitted of the
charge to which the plea agreements related. Given his acquittal on the relevant
charge, Cooper clearly was not prejudiced by the admission of codefendants’ plea
agreements. Further, neither trial counsel, nor appellate counsel failed to meet
Strickland’s objective standard of reasonable representation.303
5. Speedy Trial
297
E.g., Trial Tr., Feb. 26, 2019, at 103:16–110:5; 120:8–15.
298
The Court expressed its thoughts at length on the plea agreement issue. Id. at
182:13–189:17.
299
Id. at 193:4–195:6.
300
Id. at 195:7–8.
301
Id. at 199:8-201:3.
302
Id. at 200:9-12.
303
The fact that appellate counsel filed a merits brief on appeal raising more
meritorious issues, further insulates them against a claim of performance
deficiency.
48
Cooper claims that his right to a speedy trial was violated under the United
States and Delaware constitutions304 Relying in large part on Barker v. Wingo’s305
four-factor balancing test, Cooper argues that Edinger was ineffective in not filing
his March 25, 2018 pro se motion alleging violation of his right to a speedy trial306
and that Brose was similarly ineffective for moving for severance rather than
objecting to the superseding indictments.307 The Barker v. Wingo factors are: (1)
length of the delay; (2) reason for the delay: (3) whether the defendant asserted his
right; and (4) any resulting prejudice. 308 Cooper claims that he “was inherently
prejudiced by the fact that he was incarcerated for thirteen months while he waited
to confront the evidence against him.”309
In addition to arguing that this claim is procedurally barred,310 the State
emphasizes that Edinger “was out of the case more than six months before the trial
began,” and that numerous other facts weigh against finding that Cooper’s right to
a speedy trial was violated.311 It notes that the seriousness of the charges,
complexity of the case, change in counsel, and the fact that he was tried “within 13
304
Def.’s Am. Mot., at 41, D.I. 135; Def.’s Supp. Br., at 26, D.I. 154.
305
Barker v. Wingo, 407 U.S. 514 (1972).
306
Def.’s Supp. Br., at 27–28, D.I. 154.
307
Def.’s Am. Mot., at 42, D.I. 135.
308
Barker, 407 U.S. at 530.
309
Def.’s Supp. Br., at 28, D.I. 154.
310
State’s Resp., at 25, D.I. 160.
311
Id. at 28, ¶e.
49
months of his arrest – and several months before earlier indicted codefendants had
their trials” all weigh against such a finding.312
Cooper was originally indicted on January 16, 2018, and trial took place
from February 25–28, 2019. The docket reflects three trial dates – June 19,
2018,313 October 29, 2018,314 and February 25, 2029.315 It appears that the
rescheduling of the June 19th trial was caused by a reindictment of “all related and
active RICO cases” totaling 40 defendants on June 4 th.316 The Office of Conflicts
Counsel moved for Brose’s admission pro hac vice on August 10, 2018,317
presumably due to Edinger’s office having a conflict in representing Cooper after
the reindictment,318 The October 19th trial date was rescheduled due to Brose
having only recently entered his appearance.319
The factors the Court considers determining whether a speedy trial violation
under Barker v. Wingo are: (1) the length of the delay; (2) the reason from the
delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) prejudice
312
Id. at 25 (citations omitted).
313
D.I. 4. D.I. 39 (trial scheduled for February 25, 2019).
314
D.I. 23.
315
D.I. 39.
316
D.I. 17.
317
D.I. 27.
318
The record is unclear why there was a substitution of counsel, although it is
likely that the Public Defender’s Office, where Edinger was employed, learned it
had a conflict of interest involving another client due to the reindictment.
319
D.I. 31.
50
to the defendant resulting from the delay.320 The length of the delay is the trigger
that necessitates the consideration of the other three Barker factors. “[U]ntil there
is some delay which is presumptively prejudicial, there is no necessity for
inquiring into the other factors that go into the balance.”321 No specific length of
delay automatically violates the right to a speedy trial; rather the length is
“dependent on the peculiar circumstances of the case.”322 The factors are related
and no one factor is conclusive.323 The Delaware Supreme Court has held that if the
delay between arrest or indictment and trial approaches one year, then the Court
will generally consider the other factors.324
The length of the delay was 13 months. This factor weighs in Cooper’s
favor, and so, the Court considers the other factors.
The delay was occasioned by several factors. The charges were serious.
The case was extremely complex, involving allegations that Cooper was part of an
extensive criminal enterprise. At one time, the case involved as many as 40
defendants.325 There was a change in defense counsel mid-way through the time
320
Barker, 407 U.S. at 530.
321
Id.322
Id. at 530-531.
323
Rivera v. State, 2023 WL 1978878, at *5 (Del. 2023) (citing Middlebrook v.
State, 802 A.2d 268, 273 (Del. 2002)).
324
Id. (citing Cooper v. State, 2011 WL 6039613, at *7 (Del. 2011)).
325
D.I. 17.
51
the case was pending, necessitating a defense request to reschedule the October
2018 trial.326 The reasons for the delay very strongly disfavor Cooper.
Cooper alleges Edinger and Brose were ineffective in failing to assert his
right to a speedy trial. Therefore, for purposes of this analysis, the Court will treat
Cooper as having asserted his right, so that this factor favors Cooper.
Finally, the Court considers prejudice to Cooper. The Court considers
prejudice in light of the interests that the right to a speedy trial is designed to
protect: “(1) preventing oppressive pretrial incarceration; (2) minimizing the
anxiety and concern of the accused; and (3) limiting the possibility that the defense
will be impaired.”327 Cooper was incarcerated throughout the pretrial proceedings.
While he asserts that he “was under the constant stress and apprehension of having
his life forever altered by the possibility of a guilty verdict[,]”328 that stress and
apprehension is more appropriately attributed to the seriousness of the charges and
the strength of the State’s case, than to any pretrial delay. Evidence of the fact that
Cooper was less concerned about the delay than the charges are his requests to
continue the trial by letter dated February 22, 2019,329 and orally after jury
selection, but before the presentation of evidence.330 Most importantly in the
326
D.I. 31.
327
Rivera, at *6 (quoting Weber v. State, 971 A.2d 135, 162 (Del. 2009)).
328
Def.’s Supp. Br., at 28, D.I. 154.
329
D.I. 64.
330
Trial Tr., Feb. 25, 2019, at 3:23-4:17.
52
Court’s view is the fact that Cooper does not assert that his defense was impaired
in any way by the delay. This factor favors the State.
Having considered all of the Barker v. Wingo factors, the Court concludes
that they weigh against finding a violation of Cooper’s right to a speedy trial.
Although more than a year passed between his arrest and trial, nearly half of that
delay was not attributable to the State, and Cooper failed to show that the delay
impaired his defense in any way.
Edinger represented Cooper for less than seven months. At the time he left
the case, there had been no violation of Cooper’s speedy trial rights. For that
reason, Edinger was not ineffective in failing to move to dismiss the indictment
based on a violation of Cooper’s speedy trial rights. Similarly, Brose had no basis
to move to dismiss the indictment based on a violation of Cooper’s speedy trial
rights. Since there was no violation of Cooper’s speedy trial rights, appellate
counsel was not ineffective in not raising a speedy trial claim on appeal.
E. Trial Counsel was not Ineffective in not Calling Kiayre Braxton as a
Witness.
Cooper takes issue with Brose’s failure to call Braxton to testify “despite his
availability to testify and his ability to present clearly exculpatory evidence in
favor of the defendant.”331 After some vacillation between testifying and not
331
Def.’s Supp. Br., at 30, D.I. 154; Braxton Aff., DA 684, D.I. 155.
53
testifying, Braxton was ultimately willing to testify.332 Brose was given
permission to speak with him, but “told [Braxton] that he could not help the
defendant or the defense” and did not call him to testify.333 Cooper claims that
Brose’s election not to call Braxton to testify constitutes ineffective assistance of
counsel.334
The State contends that “Cooper attempts to invert the much-scrutinized
transcripts and recordings with the confidential informant (both his own and
Braxton’s) and ignores the photo evidence the investigators preserved from
Cooper’s Instagram pages (before Cooper deleted the images)” – all to argue that
he was somehow entrapped.”335 It also emphasizes that it was Cooper’s decision
not to call Braxton336 and that Braxton’s testimony would have been beneficial to
the State.337
Braxton initially intended to invoke his Fifth Amendment rights,338 but after
speaking with his counsel, he elected to testify.339 After speaking with Braxton,
Brose informed the Court that “[he] advised Mr. Cooper, in [his] opinion, [he]
would not call [Braxton] to testify. It’s against [his] advice to have him testify, but
332
Id.333
Id.334
Id. at 30–31.
335
State’s Resp., at 26–27, D.I. 160.
336
Id. at 27 citing Trial Tr., Feb. 27, 2019, at 37:1–16.
337
State’s Resp., D.I. 160 at 27.
338
Trial Tr. Feb. 27, 2019, D.I. 155, at 2:13–15.
339
Id. at 31:2–21.
54
Mr. Cooper desires to have [Braxton] testify.”340 However, as the State noted,
Cooper himself ultimately elected not to call Braxton to testify.341 “Whether to call
a witness, and how to cross-examine those who are called are tactical decisions.”342
A defendant challenging such decisions has the burden of supplying what
information “would have been obtained had [counsel] undertaken the desired
investigation’ and how this information would have changed the result. The
defendant must ‘substantiate his concrete allegations of actual prejudice or else risk
summary dismissal.’”343
Here, Brose’s ability to conduct a thorough debriefing of Braxton was
impaired by the fact that Braxton was Cooper’s codefendant and was represented
by counsel. Braxton did not resolve his case until February 11, 2019 – two weeks
before Cooper went to trial.344 Further, he did not agree to waive his Fifth
Amendment rights until only moments before he would have testified.345 Under
those circumstances, Brose had no meaningful opportunity to discuss Braxton’s
testimony with him. It is apparent that Braxton would have brought considerable
baggage with him to the witness stand, having entered guilty pleas to Conspiracy
to Commit Racketeering, Drug Dealing (Heroin), and three counts of PFDCF in
340
Id. at 35:23–36:4.
341
State’s Resp. at 27, D.I. 160.
342
Outten, 720 A.2d at 557.
343
State v. Powell, 2016 WL 3023740 at 25 (quoting id.).
344
See, State v. Braxton, 2021 WL 4462593 (Del. Super. Sep. 29, 2021).
345
Trial Tr., Feb. 27, 2019, at 31:2-21.
55
the same case in which Cooper was charged.346 Importantly, by admitting he was
guilty of conspiring to commit racketeering, Braxton admitted to conspiring with
Cooper since they were listed as codefendants in that charge.347 Certainly, that
admission would have created a substantial problem for Cooper in avoiding
conviction on the conspiracy charge. Braxton also was the subject of any number
of surreptitiously recorded conversations with CS5.348 After having had a brief
opportunity to speak with Braxton, Brose decided that he would not be helpful,
and, in consultation with Cooper, made the entirely reasonable decision not to call
Braxton. In doing so, Cooper avoided enhancing his risk of being convicted of
Conspiracy to Commit Racketeering due to Braxton’s admission that he conspired
with Cooper to commit that crime, as well as any other risks, known and unknown,
Braxton’s testimony presented. Brose’s decision to refrain from calling Braxton as
a witness clearly was professionally reasonable. Arguably it would have been
calling him as a witness that would have been professionally unreasonable.
F. Resubmitted Prior Claims.
The Supplemental Brief filed by current postconviction counsel resubmits
all of the claims included in Levin’s Amended motion and Cooper’s pro se
346
Id.347
Reindictment, Count Two, D.I. 30.
348
See, e.g. State’s Resp., at 22-23, D.I. 160.
56
Motion.349 Levin attempted to structure his Amended Motion to track as closely as
possible Cooper’s pro se Motion.350 For that reason, the Court addresses the two
motions concurrently.351 The Supplemental Brief identified, restated, and
expanded upon certain of the claims raised in the earlier motions. All of those
restated and expanded claims in the Supplemental Brief were resolved above.
Finally, Levin’s Amended Motion identifies those claims raised by Cooper that
Levin considers to be without merit and Levin explains his reasons for those
conclusions. The Court has carefully reviewed those “no merit issues” and agrees
with Levin that each of them is without merit for the reason Levin offers.
In his Amended Motion, Levin identifies what he considers meritorious
ineffective assistance of counsel claims raised by Cooper in his pro se Motion
relating to Edinger as Edinger failing to bring motions on Cooper’s behalf to allow
him to proceed pro se;352 to assert a speedy trial violation and to object to the
superseding indictment.353 The Court addressed these claims in Sections V. A. and
V. D. 5, respectively.
349
Def.’s Supp. Br., at 32-36, D.I. 152.
350
Def.’s Am. Mot., at 31, D.I. 135.
351
The Amended Motion did not address Cooper’s claim in his pro se Motion that
Volturo was ineffective in moving Brose’s admission pro hac vice. The Court has
considered the claim and finds it to be without merit.
352
Id. at 31-33.
353
Id. at 41-42.
57
Regarding Brose, Levin alleges multiple acts or omissions he deems
constitute ineffective assistance of counsel. The Court addresses each in turn.
1. Brose was ineffective in failing to challenge the veracity of the
affidavits in support of the search warrants and file a Franks Motion regarding
CS5’s false allegations.354 The Court addressed this claim in Section V. D. 2.
2. Brose was ineffective in failing to present an entrapment defense after
admitting Cooper’s guilt in his opening statement.355 The Court addressed this
claim in Section V. B.
3. Brose was ineffective in failing to object to Special Agent Haney’s
testimony regarding a photograph of a Ruger P85 firearm sent to him by the
confidential informant in violation of Cooper’s Sixth Amendment confrontation
rights.356 During the search of Unit 8, a Ruger P85 firearm was recovered. Cooper
was found guilty of possession this weapon. The Court finds no merit in Cooper’s
Sixth Amendment claim, inasmuch as the photograph was from Cooper’s own
Instagram account. More importantly, Cooper has failed to demonstrate prejudice
from the admission of the photograph. The firearm itself was located in Unit 8
354
Id. at 33-39.
355
Id. at 43-44.
356
Id. at 44-46. Levin writes, “The photos that the informant sent to Agent Haney
were never turned over to the defense during discovery. The photos also were not
included in the Instagram records recovered from the State’s search warrant of Mr.
Cooper’s Instagram.” The Amended Motion only references and raises an issue
one regarding photograph, nor does it substantiate the discovery claim.
58
which was associated with Cooper, and Cooper was convicted of possessing other
contraband recovered from that location.
4. Brose was ineffective in failing to use police reports to impeach
officers and the State’s forensic chemist expert witness.357 Cooper faults Brose for
failing to challenge a discrepancy between the weight of the heroin reported by
Det. Barnes and the forensic chemist and the chemist’s methodology for
calculation its weight.358 Cooper was convicted of possessing with the intent to
deliver four grams or more of heroin 359 and aggravated possession of five grams or
more of heroin.360 Those convictions merged for sentencing.361 Cooper has failed
to demonstrate prejudice related to any aspect of the forensic drug analysis. Both
the weight described by Det. Barnes and by the forensic chemist are well in excess
of five grams.
5. Cooper has not produced any evidence on postconviction relief that
would undermine either the conclusion that the substance was heroin or that the
combined weight exceeded five grams.
6. Brose was ineffective in failing to investigate and call witnesses
regarding the drugs and firearms seized during the execution of the search warrant
357
Id. at 47-48.
358
Id.
359
Reindictment, Count 4, Drug Dealing Heroin, D.I. 30.
360
Id. Count 5, Aggravated Possession of Heroin.
361
Sentencing Tr., May 31, 2019, at 20, 33-34.
59
at the shop I support of Cooper’s contention that the drugs and firearms were
planted by various law enforcement officers.362 This claim is conclusory and
unsubstantiated, and Cooper fails to identify any witnesses whose testimony would
support it.
7. Brose was ineffective in failing to file for discovery and inspection.363
Here, Levin does little more than restate Cooper’s claim. There is no support in
the record for this allegation that Brose did not request discovery. To the extend
Cooper alleges Brose failed to identify the technician who provided Instagram
records to the State or the officers who found the contraband, he has failed to
demonstrate prejudice.
8. Brose was ineffective in failing to object to Instagram photographs
and retain and expert.364 To the extent this claim relates to Special Agent Haney,
the Court addressed it in Section V. F. 3. Cooper, through Levin, fails to articulate
a basis to object to other Instagram photographs obtained by search warrants.
Further, he has failed to articulate any reason to conclude that had Brose retained
an expert, that expert would have been helpful.
362
Def.’s Am. Mot. at 49-50, D.I. 135.
363
Id. at 52.
364
Id. Levin notes this claim is redundant.
60
9. Brose was ineffective in failing to object to the Court’s decision
regarding the confidential informant’s identity.365 The Court addressed this issue
in Section V. D. 3.
10. Brose was ineffective in failing to move for a new trial.366 Levin
restates Cooper’s claim that had Brose moved for a new trial on the grounds that
the reindictment prejudiced his case, no officers from the shop testified, and the
State’s drug expert miscalculated the quantity of heroin, he would have been
granted a new trial. The Court has considered these arguments and concludes that
it would not have ordered a new trial based on them.
11. Brose was ineffective in failing to object to the State’s FBI fingerprint
expert’s report and testimony.367 Levin offers, “Given the unreliability of latent
fingerprint forensic science, Attorney Brose has no justifiable reason for failing to
ask a single question on cross-examination.”368 Cooper has failed to demonstrate
prejudice. Levin provides no support for his statement regarding the reliability of
fingerprint forensic science, nor does he provide any expert opinion to contest the
State’s trial evidence.
365
Id. at 52-54.
366
Id. at 54-55.
367
Id. at 55-56.
368
Id. at 56.
61
12. Brose was ineffective in failing to object to the State’s DNA expert’s
report and testimony.369 Levin fails to articulate a basis to object to the witness’
report, nor does he offer any expert evidence to challenge he conclusions.370
Accordingly, he has not demonstrated prejudice.
13. Brose was ineffective in failing to move to suppress DNA samples
collected from Cooper.371 Neither Cooper, nor either of his postconviction relief
counsel provided the Court with the probable cause affidavit in support of the
DNA search warrant in order to substantiate their claim that it lacked probable
cause. In any event, Cooper concedes in his pro se Motion that his DNA was
already “in the system” from other cases.372 Accordingly, he cannot show
prejudice.
14. Brose was ineffective in failing to request a missing witness
instruction for an unidentified confidential informant.373 The Court finds no basis
for a missing witness instruction, and the absence of such an instruction had no
bearing on the outcome of the case.
369
Id. at 57-59.
370
Brose obtained a DNA whose results were consistent with the FBI expert’s
conclusions. Id. at 46.
371
Id. at 59-61.
372
Def,’s pro se Mot., D.I. 120
373
Def.’s Am. Mot., at 61-62, D.I. 135.
62
The Court now turns to the claims raised by Cooper in his pro se Motion
that Levin deems to be without merit.
15. Brose was ineffective for failing to file motions to suppress regarding
FBI GPS surveillance and wiretap. 374 Levin states that “[t]he wiretap and GPS
evidence was legally obtained by the FBI through various subpoenas.” The fact
that federal agents obtained the evidence is immaterial to the legality of the
evidence collection. The Court agrees.
15. Brose was ineffective for failing to move for dismissal for lack of
jurisdiction and illegal arrest.375 Levin states that Delaware’s state court has
jurisdiction. The Court agrees.
16. Brose was ineffective in failing to seek a DNA expert regarding the
testing of Cooper’s DNA swabs.376 Levin explains that this claim is without merit
because Brose retained an expert who confirmed the accuracy of the State’s
expert’s report and testimony.377 The Court agrees.
17. Brose was ineffective for failing to object to a different judge other
than the one who presided over the trial handling a note from the jury.378 Levin
states that Cooper suffered no prejudice because the parties agreed to the answer to
374
Amended Mot., at 39., D.I. 135
375
Id. at 40.
376
Id. at 46-47.
377
Id. at 47.
378
Id. at 50-51.
63
the jury’s note which delt with a count on which Cooper was acquitted.379 The
Court agrees.
18. Brose was ineffective for stipulating to Cooper’s prior record.380
Cooper alleges that his prior convictions are for trafficking in heroin, possession
with the intent to deliver, and maintaining a vehicle for the possession of
controlled substances are ‘“no longer in the Delaware law books since 2011.”’381
Brose discussed the stipulation with Cooper, which Cooper signed.382 Levin states
that the fact that some offenses are no longer in the books does not alter Cooper’s
prohibited status.383 The Court agrees.
19. Brose failed to move to sequester two State’s witnesses who were
allowed to sit a counsel table.384 The witnesses we chief investigating officers.
Levin explains that sequestration of witnesses is within the Court’s discretion and
chief investigation officers are not excluded.385 The Court agrees.
20. Brose failed to object to Count One of the verdict sheet and to move
for a mistrial because Count One did not bear on Cooper’s guilt or innocence.386
Levin states that Cooper was charged with this offense and the verdict forms
379
Id.
380
Id. at 51.
381
Id.
382
Trial Tr., Feb. 21, 2019, at 49:7–19.
383
Def.’s Am. Mot, at 51, D.I. 135.
384
Id. at 56.
385
Id.
386
Id. at 57.
64
properly present all necessary elements to convict. At the same time, there is no
prejudice because Cooper was found not guilty of this charge.387 The Court agrees.
G. Prosecutorial Misconduct.
1. Cooper alleges that the State withheld Instagram communications
between himself and the confidential informant.388 This issue was litigated at trial
by Brose.389 Thus, it is barred as previously litigated.390
2. Cooper alleges that the State interfered with a witness, Kiayre Braxton.391
Levin states that there is no evidence that the State interfered with Braxton’s
testimony.392 The Court agrees. In fact, it was Cooper who declined to call
Braxton as a witness, despite Braxton being willing to testify.393
3. Cooper alleges that the State presented tainted evidence to the jury.394
Cooper claims that the State committed prosecutorial misconduct when Det.
Barnes broke the evidence seals on evidence boxes to put locks on the guns inside
them.395 This issues is barred as procedurally defaulted.396 Even if viewed as an
ineffective assistance of counsel claim for failing to raise the issue, it fails both
387
Id.
388
Id. at 63.
389
Trial Tr., February 25, 2019, at 3:21-37:9.
390
Super. Ct. Crim. R. 61(i)(4).
391
Def.’s AM. Br., at 64, D.I. 135.
392
Id. at 63-64.
393
See Section V E.
394
Def.’s Am. Mot, at 65-66, D.I. 135.
395
Id.
396
Super. Ct Crim R. 61(i)(3).
65
Strickland prongs. There is no evidence Det. Barnes did anything wrong or that
Cooper was prejudiced by his actions.
4. Cooper alleges that the State lied to the jury regarding when he was
indicted.397 Cooper claims Special Agent Haney incorrectly told the jury that he
was indicted in February when he was actually reindicted in June 2018. 398 Levin
explains that this issue has no merit because it was addressed by Brose on cross
examination.399 Not only does the Court agree, but this issue is barred as
previously litigated.400
5. Cooper alleges that the State dropped the money laundering charge
against him but continued to comment on it during closing arguments.401 Levin
deems this issue to have no merit, because any comments the State made in
reference to money laundering were limited to establishing a predicate act for the
criminal enterprise in connection with the Conspiracy to Commit Racketeering
charge.402 Not only does the Court agree, but this issue is procedurally
defaulted.403 Even if viewed as an ineffective assistance of counsel claim for
failing to raise the issue, it fails both Strickland prongs. The State’s comments
397
Def.’s Am. Mot. at 66-67, D.I. 135.
398
Id.
399
Id.
400
Super. Ct. Crim. R. 61(i)(4).
401
Def.’s Am. Mot, at 67, D.I. 135.
402
Id.
403
Super. Ct. Crim. R. 61(i)(3).
66
were proper, and even if they were not, Cooper was not prejudiced because he was
acquitted of the Conspiracy to Commit Racketeering charge.
6. Cooper alleges that the State improperly sent his discovery materials to
other attorneys and codefendants.404 Levin deems this issue to have no merit,
because, while the State sent discovery materials to a codefendant’s attorney
related to the codefendant’s case, there is no evidence that any of those materials
related to Cooper.405 Not only does the Court agree with Levin, but this issue is
procedurally defaulted.406 Even if viewed as an ineffective assistance of counsel
claim for failing to raise the issue, if fails both Strickland prongs. There is no
evidence that the State committed misconduct or that Cooper was prejudiced.
7. Cooper alleges that the State acted vindictively by ceasing to prosecute
five of his codefendants who were subsequently tried in federal court while
continuing to prosecute him in State court.407 Levin deems this issue to have no
merit because the is no legal basis to support it.408 Not only does the Court agree
with Levin, but this issue is procedurally defaulted.409 Even if viewed as an
ineffective assistance of counsel claim for failing to raise the issue, it fails both
Strickland prongs. It is legally without support.
404
Def.’s Am. Mot. at 67, D.I. 135.
405
Id.
406
Super. Crim. R. 61(i)(3).
407
Def.’s Am. Mot, at 67-69, D.I. 135.
408
Id. at 69.
409
Super. Ct. Crim. R. 61(i)(3).
67
H. The Court Abused its Discretion.
1. Cooper alleges that the Court abused its discretion when it violated his
Fifth Amendment right to remain silent by ruling that he had to testify in order to
reveal the identity of the confidential informant.410 The Court addressed this issue
in Section V. D. 3.
2. Cooper alleges that the Court abused its discretion when it accepted a
stipulation concerning his prior record without conducting a colloquy with him.411
The Court substantially address this issue in Section V. F. 18. Further, there is no
statutory or case law requiring such a colloquy.
3. Cooper alleges that the Court abused its discretion in allowing his
codefendants’ guilty pleas to be admitted in evidence.412 The Court addressed this
issue in Section V. D. 4.
4. Cooper alleges that the Court abused its discretion and violated his due
process rights when it made a comment during Det. Barnes’ testimony.413 Mr.
Levin deems this issue to have no merit because the Court’s comment protected
Cooper’s due process rights rather than infringed on them.414 Not only does the
Court agree with Levin, but the Court addressed this issue in more detail when it
410
Def.’s Am. Mot, at 69-70, D.I. 135.
411
Id. at 70-71.
412
Id. at 71-73.
413
Id. at 73-75.
414
Id. at 75.
68
denied Cooper’s Motion for Recusal on November 30, 2020.415 Further, this issue
is procedurally defaulted.416 Even if viewed as an ineffective assistance of counsel
claim for failing to raise the issue, it fails both Strickland prongs. Cooper simply
inverts the purpose of the Court’s comment.
5. Cooper alleges that another judge improperly ruled on a jury note.417 The
Court addressed this issue in Section V. F. 17.
6. Cooper alleges that Brose was improperly admitted pro hac vice without
his permission. Levin deems this issue to be without merit because there was no
impropriety in Brose’s admission, the issue was discussed with Cooper directly,
and Cooper’s acquiescence is not required.418 Not only does the Court agree with
Levin, but this issue is barred because it was litigated directly with Cooper.419
Even if viewed as an ineffective assistance of counsel claim for failure to raise the
issue, it fails both Strickland prongs because there is no legal basis to support it.
415
D.I. 118.
416
Super. Ct. Crim. R. 61(i)(3).
417
Def.’s Am. Mot., at 75, D.I. 135.
418
Id. at 75-76.
419
Super. Ct. Crim. R. 61(i)(4).
69
V. CONCLUSION
For the foregoing reasons, Defendant Maurice Cooper’s Motion for
Postconviction Relief is DENIED.
IT IS SO ORDERED.
/s/ Ferris W. Wharton
Ferris W. Wharton, J.
70