State v. Harris ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE : ID. No. 1607020376
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v. :
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JORDAN O. HARRIS, :
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Defendant. :
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ORDER
Submitted: July 9, 2021
Decided: September 21, 2021
On this 21st day of September 2021, after considering Defendant Jordon
Harris’ motion for postconviction relief, the State’s opposition, the Commissioner’s
Report and Recommendation, Mr. Harris’ appeal from the Commissioner’s Report
and Recommendation, and the record in this case, IT APPEARS THAT:
1. On July 20, 2017, a jury found Mr. Harris guilty of the following: one
count of Possession of a Firearm by a Person Prohibited, 11 Del. C. § 1448; one
count of Possession of Firearm Ammunition by a Person Prohibited, 11 Del. C. §
1448; one count of Resisting Arrest, 11 Del. C. § 1257; one count of Driving under
the Influence, 21 Del. C. § 4177; and several other Title 21 traffic offenses.
2. After a presentence investigation, the Court sentenced Mr. Harris to
twenty-five years incarceration, suspended after seven years, followed by probation.
Mr. Harris then filed a direct appeal and requested to proceed pro se during his
appeal. On April 16, 2019, the Delaware Supreme Court affirmed his convictions.1
3. On May 9, 2019, Mr. Harris filed a pro se motion for postconviction relief
and an accompanying motion for appointment of counsel. The Court granted the
latter. Thereafter, his postconviction counsel filed an amended motion. The
amended motion alleges ineffective assistance of trial counsel because trial counsel
chose not to file a motion to suppress in his case.
4. A Commissioner of this Court issued her Report and Recommendation on
June 23, 2021 (the “Report”). First, the Report sets forth the facts and appliable
standard for this postconviction motion which the Court adopts without repeating.2
Second, in her Report, the Commissioner recommends that the Court finds Mr.
Harris’ motion to be procedurally barred pursuant to Superior Court Criminal Rule
61(i)(3).3 Third, she also recommends that the Court find that trial counsel (1)
competently represented Mr. Harris, and (2) trial counsel’s decision not to file a
motion to suppress caused Mr. Harris no prejudice.4
5. Mr. Harris now appeals the Commissioner’s findings of fact and
recommendations. In reviewing his appeal, the Court conducts a de novo review “of
those portions of the report or specified proposed findings or recommendations to
which an objection is made.”5 Pursuant to that review, the Court may either accept,
1
Harris v. State, 210 A.3d 143 (Table), 2019 WL 1752646, at *4 (Del. April 16, 2019).
2
State v. Harris, 2021 WL 3829829, at *1-3 (Del. Super. June 23, 2021).
3
Id. at *1. See Super. Ct. Crim. R. 61(i)(3).
4
Id. at *8.
5
Super. Ct. Crim. R. 62(a)(5)(iv).
2
reject, or modify the report in whole or in part.6 In his appeal, Mr. Harris first argues
that the Commissioner erred when she found his motion to be procedurally barred.
Second, he argues that she erred by recommending that the Court deny his motion
on substantive grounds. He contends that the officer performed a Terry-level seizure
when the officer approached his vehicle and activated the strobe function on her
flashlight.7 According to Mr. Harris, the seizure was unlawful at that point because
the police officer did not have reasonable articulable suspicion that the car’s
occupants had engaged in criminal activity.8
6. At the outset, Mr. Harris correctly recognizes that Rule 61(i)(3) does not
procedurally bar his claim. Namely, Rule 61(i)(3) applies to “any ground for relief
that was not asserted in the proceedings leading to the judgment of conviction.” 9
The recent Delaware Supreme Court decision in Green v. State clarifies that Rule
61(i)(3)’s procedural bar does not apply in this case because Mr. Harris could not
have raised his ineffective assistance of counsel claim during his trial or direct
appeal.10
7. Nevertheless, Mr. Harris’ motion must be denied on substantive grounds
for many of the reasons recognized by the Commissioner. Namely, when the Court
applies the controlling standard, as set forth in Strickland v. Washington,11
6
Id.
7
See Lopez-Vazquez v. State, 956 A.2d 1280, 1286-89 (Del. 2008) (discussing the standard for
evaluating the seizure of a motor vehicle under the Terry framework).
8
Id. at 1286.
9
Super. Ct. Crim. R. 61(i)(3).
10
See Green v. State, 238 A.3d 160, 175 (Del. 2020) (recognizing that “the failure to assert an
ineffective-assistance-of-counsel claim in the proceedings leading to the judgment of conviction
is not a procedural default”); but see (Vaughn, J., concurring) (opining that in part, Rule 61(i)(3)
may still procedurally bar ineffective assistance of counsel claims “that could have been but were
not raised at trial.”).
11
466 U.S. 668 (1984).
3
postconviction relief is unavailable. In her Report, the Commissioner examined the
objective reasonableness of trial counsel’s actions. She found counsel’s decision not
to file a suppression motion to be objectively reasonable.12 The Commissioner also
examined whether trial counsel’s decision to not file a motion caused Mr. Harris
prejudice. She also recommended that the Court find no prejudice.13
8. In Mr. Harris’ appeal, he maintains his focus on whether trial counsel
should have filed a suppression motion. Specifically, he argues that the officers’
actions so obviously lacked in reasonable articulable suspicion that (1) trial counsel
should have filed a motion, and (2) the motion would have had a reasonable
probability of success. Furthermore, Mr. Harris contends that the officer conducted
a Terry-level seizure when she activated the strobe function on her flashlight. He
argues that, at that point, the officers had no reasonable justification to seize Mr.
Harris’ vehicle.
9. The State counters by arguing that the initial seizure did not take place
until the officers began their chase of the fleeing vehicle – namely, when one of the
police cars activated its emergency equipment with the chase in progress. The State
further contends that, in the absence of a suppression motion, the State had no
incentive to develop a record regarding the issue at trial.
10. At the outset, the State, in fact, had no incentive or obligation to develop
a trial record addressing the justification for the officers’ search and seizure
decisions. Nevertheless, even without that incentive, the trial evidence demonstrates
that Mr. Harris would have had no reasonable probability of success had he filed a
12
Harris, 2021 WL 3829829, at *8.
13
Id.4
suppression motion.14 The Court presided over the trial and has again thoroughly
reviewed the record which includes the testimony of multiple officers. The Court
also reviewed the MVR video that the State presented at trial. That video shows the
relevant exchange between the officers and Mr. Harris’ vehicle.
11. Here, the trial evidence demonstrates that the Delaware State Police and
the Governor’s Task Force sought to apprehend a third-party, Dana Legrande, at his
home address, 417 North Street, in Milford, Delaware (the “Residence”).15 Police
and Probation and Parole officers wanted Mr. Legrande for a violation of probation
and for other outstanding capiases.16 They surveilled the Residence during the night
of July 16, 2016.17 As they observed the Residence, the officers saw a car, with two
male occupants, stop directly in front of it at approximately 11 p.m.18 The MVR
video shows the car stop in a manner consistent with either dropping an occupant
off at the Residence or waiting to pick up an additional person from it.19 As a police
officer exited her car and approached the rear of the stopped vehicle, the vehicle
started to move slowly ahead. At that point, the officer activated the strobe function
on her flashlight to alert the car’s occupants of her presence. The vehicle then
abruptly “sped away.”20 The MVR video confirms that the car left at a high rate of
speed that clearly exceeded the speed limit in a residential neighborhood. At that
14
See State v. Feliciano, 2015 WL 1946045, at *4 (Del. Super. Jan. 15, 2015) (citing Williams v.
State, 12 A.3d 1155 (Del. 2011) (requiring “a defendant in the context of a Rule 61 motion to
prove a reasonable probability of success on a motion to suppress to prove prejudice from
counsel’s deficient performance”)). See also Younger v. State, 580 A.2d 552, 556 (Del. 1990)
(requiring the defendant to set forth and substantiate concrete allegations of actual prejudice)).
15
A63.
16
A61.
17
Id.18
State’s Ex. No. 1.
19
Id.20
A64.
5
point, the officers reentered their vehicles and activated their emergency equipment
shortly after beginning the chase.
12. Here, the decision to not file a suppression motion did not cause Mr.
Harris prejudice because no viable claim existed. First, the initial seizure did not
take place until the police activated their emergency equipment after Mr. Harris’
vehicle sped away.21 Under the circumstances of this case, the act of a police officer
stopping behind an occupied car and approaching the car with a flashlight did not
constitute a seizure.22 To deem it as such would prevent law enforcement officers
from approaching any vehicle stopped on the roadway, absent suspicion of criminal
activity. Such a rule-based finding would also inappropriately prohibit officers from
using lighting for their own safety while checking on vehicles at night on roadways.
13. Here, the seizure occurred after the car fled the scene when an officer
activated the police car’s emergency equipment during the chase. At that point, the
trial record demonstrates that the following facts were available to the officers: a
driver had stopped his vehicle at night in front of a residence of a wanted person,
and the driver then abruptly fled from the police in a residential neighborhood at a
high rate of speed when recognizing that an officer was approaching his car. Those
21
See State v. Enos, 2003 WL 549212, at *2 (Del. Super. Feb. 26, 2003) (noting that “[a]lthough
a decision whether a seizure has occurred depends upon all the circumstances, a number of
Delaware cases have held that a seizure occurs when a police cruiser pulls up to a vehicle and
activates its emergency flashers.”). See also State v. Clay, 2002 WL 1162300, at *2 (Del. Super.
May 28, 2002) (concluding that the act of pulling behind the defendant and turning on emergency
lights constituted a seizure under the circumstances).
22
See United States v. Hayden, 759 F.3d 842, 847 (8th Cir. 2014) (holding that “for Fourth
Amendment purposes shining a flashlight to illuminate a person is not a coercive act that
communicates an official order to stop or comply”); see also United States v. Douglass, 467 F.3d
621, 624 (7th Cir. 2006) (concluding that the officers’ use of a flashlight was insignificant and
would not cause a reasonable person to feel compelled to remain given that it was 2 a.m. in a dark
parking lot). See Flowers v. State, 195 A.3d 18, 24 (Del. 2018) (noting “[a] person is ‘seized’
when, in view of all of the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.”)).
6
facts provided more than a mere hunch that the vehicle’s occupants were engaged in
criminal activity.23 When viewed in their totality, they provided reasonable
suspicion that the car’s occupants (1) included a wanted individual, and (2) the car’s
driver drove at an unsafe speed in a residential neighborhood.
14. Furthermore, had Mr. Harris’ trial counsel filed a suppression motion, it
would have failed for an additional reason. Namely, even had the initial stop been
deemed to occur at the time the officer turned on her flashlight, the car’s driver did
not have free license to recklessly speed away in a residential neighborhood. The
vehicle’s subsequent unsafe movement constituted criminal activity that provided a
subsequent independent basis for seizing the vehicle. Here, the facts of record do
not involve an individual merely avoiding police contact by walking away or even
running away. Rather, the driver’s decision to speed away in a car in a residential
neighborhood provided more than the reasonable articulable suspicion necessary to
stop the vehicle, based upon the new conduct. Regardless of when the initial stop
occurred, the police had reasonable justification to stop the speeding vehicle.
NOW, THEREFORE, after a de novo review of the record in this action, and
consideration of the parties’ arguments and the Commissioner’s Report and
Recommendation dated June 23, 2021;
IT IS HEREBY ORDERED that the Commissioner’s Report and
Recommendation is adopted in part by the Court. The Court declines to accept the
Commissioner’s recommendation that Mr. Harris’ claim was procedurally barred,
but accepts her recommendations that Mr. Harris’ claim is substantively barred for
23
See State v. Murray, 213 A.3d 571, 579 (Del. 2019) (quoting
Robertson v. State, 596 A.2d 1345, 1350 (Del. 1991)) (explaining “[a] vague hunch or feeling that
the defendant ‘looked suspicious’ will not do,” rather, the police must have “a reasonable
articulable suspicion of criminal activity”).
7
the reasons she provided and for the reasons discussed in this Order. As a result,
Mr. Harris’ Amended Motion for Postconviction Relief pursuant to Superior Court
Criminal Rule 61 must be DENIED.
IT IS SO ORDERED.
/s/Jeffrey J Clark
Resident Judge
JJC/klc
oc: Prothonotary
cc: The Honorable Andrea M. Freud
Trial Counsel
Postconviction Counsel of Record
8