State v. Land ( 2019 )

SUPERIOR COURT
OF THE
STATE OF DELAWARE
E. SCOTT BRADLEY l The Circle, Suite 2
JUDGE GEORGETOWN, DE 19947
TELEPHONE (302) 856-5256
January 24, 2019
Benjamin S. Gifford, IV, Esquire
Law Ofi`ice of Benjamin S. Gifford, IV
14 Ashley Place
Wilmington, DE 19804
Re: State of Delaware v. Maurice Land
Case No. 1408007675A
Dear Mr. Gifford:
I have granted your request and Vacated and reissued my decision on Mr.
Land’s Motion for Postconviction Relief (see attached).
Very truly yours,
E. Scott Bradley
m
ESB/jwc § mg
Enclosure <_ 55
§ m'o
m:o
N >154 A.3d 590 (Del. 2017) (Tablc).
2
call described the suspect as a black male dressed in all black and possibly armed
with a handgun Corporal DiaZ realized that one of the three men that he was
observing was dressed in all black. The officer approached the men, rolled down
his window and asked them to stop. At first, the men ignored him, but when
Corporal Diaz stopped and exited his vehicle, one of the men later identified as
Christopher Clay, ran. Corporal Diaz radioed to other officers to pursue Clay and
ordered the other two men, later identified as Maurice C. I,and and Booker T.
Martin, to stop.
Corporal Diaz and another Georgetown Police officer, Officer De.rrick
Calloway, were eventually able to detain Land and Martin. As Land was getting
on the ground, he removed his shirt, which was black with “Security” written
across the back in yellow letters. The officers also found a black baseball cap on
the sidewalk near Where Land had been standing At the time of his arrest, Land
had a latex glove and $81 in cash on his person. Martin had $897 in cash in his
pocket in three bundles that were folded and organized by denomination.
While Corporal Diaz and Officer Calloway were with Land and Martin,
Officer John Wilson was responding to Corporal Diaz’s call to pursue Clay.
Officer Wilson saw Clay running in the opposite direction of his car. He exited
the vehicle and began chasing Clay on foot. Clay continued to run, and Officer
Wilson observed him raise his hand into the air. Offlcer Wilson testified:
l didn’t know if [Clay] was going to run like he was going to turn or
if he was throwing something And I thought - I did think I saw
something leave his hand, but the lights are - it was dark; my
overheads on my police car are on; everything’s flashing.
Clay eventually got into a parked vehicle, and Officer Wilson ordered him
out of the vehicle at gunpoint. Clay had $280 in cash in his pocket, folded and
organized by denomination, and $1.17 in change Officers later recovered a black
handgun on the opposite side of a fence near where Of`ficer Wilson observed Clay
making a throwing motion.
Security footage from the Dollar Genera.l store showed Clay entering the
store With Land shortly before 9:00 p.m. Land went to the back of the store and
into the office, where surveillance cameras recorded him putting on a clear glove
and taking money out of an employee’s wallet. When the employee entered the
office, Land pointed a handgun at her and demanded the money from the register
tills. He then made her get on the ground, and he left the office. As Land was in
the back of the store, Clay placed several items on the counter. F our Seconds after
Land left the store, Clay followed without purchasing any of those items.2
2 All of the above facts were taken verbatim from the Supreme Court’s decision in Clay v4
Smre, 164 A.3d 907, 911-12(13¢1. 2017).
A joint trial for Land and his co-defendants was held. All three of the
defendants were subsequently convicted at trial. Martin’s convictions, except for
a misdemeanor Resisting Arrest charge, were later vacated and dismissed pursuant
to a post-trial Motion for Judgment of Acquittal.
DISCUSSION
This is Land’s first motion for postconviction relief and it was filed in a
timely manner. Land argues that his trial counsel was ineffective Land’s trial
counsel and the State have filed affidavits in response to Land’s allegations Land
argues that his trial counsel was ineffective because he ( l) failed to file a motion
to sever his trial from that of his co~defendants, (2) unwiser presented evidence to
the jury of robberies committed in Baltimore, Maryland with a similar modus
operandi, and (3) failed to argue on appeal that the trial court erred in denying his
motion for judgment of acquittal as to his conviction for Tampering with Physical
Evidence. Land submitted four different arguments in his pro se motion for
postconviction relief. I then appointed postconviction counsel for Land. Land’s
postconviction counsel did not advance any of them. Therefore, I have considered
Land’s four pro se arguments to be abandoned The United States Supreme Court
has established the proper inquiry to be made by courts when deciding a motion
for postconviction relief.3 In order to prevail on a claim for ineffective assistance
of counsel pursuant to Superior Court Criminal Rule 61, the defendant must
engage in a two-part analysis4 First, the defendant must show that counsel’s
performance was deficient and fell below an objective standard of reasonableness5
Second, the defendant must show that the deficient performance prejudiced the
defense.6 Further, a defendant “must make and substantiate concrete allegations of
actual prejudice or risk summary dismissal.”7
To establish prejudice, the defendant must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different A reasonable probability is a probability
sufficient to undermine the outcome.’78 To establish a reasonable probability ofa
different result, the defendant needs to “show a ‘probability sufficient to
undermine the confidence in the outcome,’ a standard lower than ‘morc likely than
3 Slricklana' v. Washl`ngton, 466 U.S. 668 (1984).
4 S)‘rz'ckland, 466 U.S, at 687.
5 ]d. at 687.
6 Id. at 687.
7 State v. Colemau, 2003 WL 22092724 (Del. Super. Feb. 19, 2003).
8 Slrz`ckland, at 694.
not. ”’9 Moreover, “[t]he benchmark forjudging any claim of ineffectiveness must
be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.”10 lt is also necessary that the defendant “rebut a ‘strong presumption’ that
trial counsel’s representation fell within the ‘wide range of reasonable professional
assistance,’ and this Court must eliminate from its consideration the ‘distorting
effects of hindsight when viewing that representation ”"'
I. Motion to Sever
Land argues that his trial counsel was ineffective because he did not file a
motion to sever his trial from that of his co-defendants. Land argues that once it
became apparent pre-trial that Clay and Martin would deny involvement in the
robbery and claim that Land had acted alone, trial counsel should have moved to
have Land’s trial severed so that he would not have to fend off both the prosecutor
and counsel for his co-defendants. Land argues that this failure allowed his co-
defendants to ask questions during the trial that placed the blame solely on him
and to argue that Land committed the robbery alone. Land also argues that his
9 Plo()fv. State, 75 A.3d 840, 852 (D€l. 2013).
'° Cooke v. Szate, 977 A.2d 803, 840 (Del. 2009) (quoting Strickland, 466 U.S. at 686).
" Coleman, 2003 WL at *2, quoting Strz`ckland, 466 U.S. at 689.
7
trial counsel should have moved for a mistrial when counsel for his co-defendants
did this. And finally, Land argues that his trial counsel was ineffective for failing
to object to the jury instructions because they were framed in a manner that
presented Land as a principal in committing the robbery and his co-defendants as
accomplices.
_ln response to Land’s allegations, trial counsel stated two reasons for not
seeking severance One, trial counsel stated that he did not request to have Land’s
case severed from that of his co-defendants because he did not think that his
request would be granted. Trial counsel stated that he was aware that Land’s co-
defendants had moved to have their trials severed and the Court had denied those
motions. Trial counsel stated that he had no reason to believe that a similar
motion for Land would be decided any differently Trial counsel noted that only
one of the four factors considered for severance had any application That factor
was the possibility of Land and his co-defendants having antagonistic defenses
Trial counsel stated further that he Was aware that Land’s co-defendants would be
pursuing a defense that they were not responsible for the robbery, and that it was
the person in the “security” shirt that was responsible Trial counsel reasoned that
the co-defendant’s defense was not directly contradictory to Land’s defense
because Land’s defense was that it was not him on the video in the “security”
shirt. Therefore, according to trial counsel, the jury was not in a position where it
had to either accept Land’s defense or the defenses of Martin and Booker. Quite
simply, trial counsel believed that the jury could have both believed that it was not
Land who committed the robbery and that the co-defendants also had nothing to
do with the robbery. Two, trial counsel stated his reason for not seeking severance
was strategic because it furthered his defense Land’s defense was that he was not
the person on the video. Trial counsel reasoned that his defense was furthered by
the co-defendants arguing that he was not part of their team. Trial counsel
believed it helped Land’s defense of “wrong place, wrong time” because the co-
defendants were caught with most of the money and the gun and he was not.
Superior Court Criminal Rule S(b) provides that “[t]wo or more defendants
may be charged in the same indictment or information if they are alleged to have
participated in the same act or transaction or in the same series of acts or
transactions constituting an offense or offenses. Such defendants may be charged
in one or more counts together or separately and all of the defendants need not be
charged in each count.” The Delaware Supreme Court set forth four factors that a
trial court should consider when determining whether to sever defendants: “(1)
problems involving a co-def`endant’s extra-judicial statements; (2) an absence of
substantial independent competent evidence of the movant’s guilt; (3) antagonistic
defenses as between the co-defendant and the movant; and (4) difficulty in
segregating the State’s evidence as between the co-defendant and the movant.”12 l
would not have granted a Motion to Sever if trial counsel had filed one because
those factors do not favor severance
l. |"roblcms involving a (_`o-Dcfcndant`s l`_i)tlra-Judicial Statements
This was not a factor favoring severance because there were no such
statements
2. An Absence 0|" Substantial lndepende_1_1tQ`Qmpctent l"lyi_dgz_rg:_e_ol`
This was not a factor because there was a considerable amount of
substantial independent competent evidence of Land’s guilt. Indeed, the evidence
of Land’s guilt was overwhelming Land was captured on the store video robbing
the store employee The store employee identified Land at trial as the person who
robbed her. Land was seen running away with his co-defendants only minutes
after he committed the robbery. Land was captured wearing the same shirt, hat
and glasses that he was wearing in the store video. Land’s co-defendants were
captured with the gun Land used and the money that he stole Quite frankly, the
same evidence would have come in against Land whether or not his trial was
n Floudz`otis v. Slale, 726 A.2d 1196, 1210 (Del. 1999).
10
severed from that of his co-defendants. This was an armed robbery with three
defendants Land actually committed the robbery. Clay was the in-store lookout.
Martin was the out-of-store lookout Land and Martin were seen together on the
video. All there men Were seen running away from the store only minutes after the
robbery was committed and were found wearing the same clothes and with the gun
and stolen money.
3. Anlagonistic Del"enses as Bctwcen the Co_-Defendants and the
Movant
The defenses were somewhat antagonistic. This is typical where some co-
conspirators play a greater role in a conspiracy than others. However, if that alone
were a reason to try each co-conspirator separately, then we would never see a trial
with all co-conspirators tried at once. We see many of these trials and we see
them because it makes sense to present all of the evidence at one time against all
of the conspirators and because there is no unfair prejudice to the conspirators in
doing so. Moreover, trying Land with his two co-defendants was hardly as awful
for Land as he makes it out. As I stated earlier, all of the evidence in this case Was
going to come in against Land even if he was tried separately because that is the
only way to accurately and faithfully present What happened lt was particularly
important to show that Land was arrested with Clay and Martin, who had the gun
11
that Land used and the money that he stole Thus, severance was not going to
eliminate the evidence of the roles played by Clay and Martin. Lastly, the defense
of all three defendants was that they did not do it. Martin argued that he was not
seen on the video at all. Clay argued he was not seen on the video doing anything
other than walking into the store and leaving the store around the same time that
Land did. Of course, as part of` their defense, Martin and Clay argued that it was
Land who actually committed the robbery. ln doing this, all they did was argue
what was obvious. Land was the one who actually robbed the store employee
The other two were just lookouts. There is nothing earth shattering about the
questions and arguments raised by Martin and Clay. Thus, while the defenses
were somewhat antagonistic, they were nothing more than the usual attempts by
co-conspirators to minimize their roles. “['l`]he presence of hostility between a
defendant and his co-defendant or ‘mere inconsistencies in defenses or trial
strategies’ do not require a severance.”'3 In Bradley v. State, the Court held that a
defendant is entitled to severance when the jury can reasonably accept the core of
the defense offered by either the defendant only if it rejects the core of the defense
'3 Phl'llips v. State, 154 A.3d 1146, 1157 (Del. 2017).
12
offered by his co-defendants.'4 Such was not the case here.
4. l`)il`ticu|ty l`n Separatin§, the_Sl£lt§`;l;fvidence As Betwe_en The
C_.‘;o-Defendants and The Movant
'l`his was not a factor because there was no trouble at all in clearly
establishing each conspirator’s role Land committed the robbery. That was
captured on the video. Clay was the in-store lookout. That was captured on the
video. Martin was the out-of-store lookout That was infen‘ed because Martin
was seen running away after the robbery with Land and Clay and was found with
much of the stolen money. Moreover, as l stated before, all of the evidence was
going to come in against Land even if he Was tried separately Such is the case
with conspiracies and it was particularly important in this case because the gun
that Land used and the money he stole were found with Clay and Martin, as was
Land.
Thus, when you consider all the factor’s together, there was no reason to
sever Land’s trial from that of Clay and Martin. Land argues that his trial counsel
should have moved for a mistrial after counsel for his co-defendants tried to place
all of the blame on him by asking questions that established that the co-defendants
did not actually commit the robbery. There is nothing to this argument lt merely
"‘ Manzey v. sra/e, 709 A.2d 643, 652 (Dei. 1998), citing Bradley v. Srare, 559 A.2d 1234,
1241 (Dei. 1989).
13
points out, as l noted earlier, the obvious. Land actually committed the robbery.
Clay and Martin were just lookouts. There is nothing startling about this. lndeed,
it is the nature of conspiracies Some co-conspirators almost always do more than
others. Land’s argument also ignores the fact that Clay and Martin were arrested
with the gun that Land used and the money that he stole Therc was no basis for a
mistrial simply because Clay and Martin tried to shift blame for the robbery by
minimizing their roles and maximizing Land’s role. 'l`he fact that Clay and Martin
Were found with the gun and money puts their arguments in the appropriate
context and allowed the jury to evaluate them for what they were worth, which
was nothing because the jury found them guilty as co-conspirators. As to the jury
instructions, Land has no basis to complain. Jury instructions should reflect the
evidence They did so in this case Land was clearly the principal Land actually
committed the robbery. Clay and Martin were lookouts. They were clearly
accomplices Jury instructions framed any other way would not have made sense
The joint trial did not compromise any specific right of any of the
defendants and it did not prevent the jury from making a reliable judgment about
the guilt or innocence of each defendant The jury did not have difficulty
segregating the evidence In fact, the evidence of the robbery was on video and it
was overwhelming The surveillance video showed a black male wearing a black
14
hat and a black shirt with “security” written across the back rob a Dollar General
employee in the back office When Land was arrested he was caught attempting to
shed the black shirt with “security” written across the back. The police also
discovered a black hat near where Land was arrested.
Martin was never seen on the surveillance video. Clay was seen on the
surveillance video, but was not with Land in the back office where the robbery
was occurring Clay was later observed throwing the gun over the fence while
being chased by a police officer. Clay was found with $280 in cash in his pocket
Martin was found with $897 in cash in his pocket. While Dollar General could
not provide an exact amount of money that was taken, it approximated the amount
found on Clay and Martin. The defenses of Clay and Martin were that they did not
rob the Dollar General store, but that it was the person wearing a black shirt with
“security” written across the back, as supported by the video. Land’s defense was
that it was not him, and that he was simply in the wrong place at the wrong time
wearing the Wrong shirt. Additionally, Land was not in possession of the gun or
the proceeds of the robbery. These are only mildly antagonistic defenses Even if,
assuming arguendo, that the defenses of the three co~defendants were at least
15
partially at odds, those tensions did not rise to the level of mutually exclusive
defenses that require severance '5
l note that trial counsel is not required to file motions that clearly would be
without merit and would reasonably be denied.16 Nothing in the evidence or in
Land’s motion hints of a possibility that the motion to sever would have been
granted Additionally, trial counsel was aware that severance had already been
denied for Land’s co-defendants, and he had no reason to think another motion
would be decided any differently Land and his co-defendants were properly tried
together under Rule 8(b). Although Land asserts that there are several
antagonistic defenses and statements, that does not make it so. The State pursued
a conspiracy theory making each defendant responsible for the actions of his co-
defendants '7 Trying to sever the trials would not have made a difference The
facts are what they are. Land was the primary actor, and Martin and Clay were the
accomplices As such, it was proper to try them together. Trial counsel was not
ineffective for failing to file a motion to sever.
'5 Comparc with Bradley v. Sta/e, 559 A.2d 1234, 1241-42 (Dcl. 1989) (finding an abuse
of discretion where the Superior Court did not sever a trial where the co-defendants repeatedly
attempted to directly incriminate each other both by direct testimony and calling witnesses who
claimed that one defendant or the other had confessed the crime to the witness).
'(’ Nichols v. Stale, 768 A.2d 470 (Del. 2001).
'7 See ll Del.C. § 512 and ll Del.C. §272.
16
Morever, even if Land had been tried separately it would not have made any
difference All of the evidence that came into the joint trial would have come into
l,and’s trial even if he had been tried alone That evidence was substantial Land
was seen on video committing the robbery The store employee that Land robbed
identified Land as the man who robbed her at trial.'8 Land was arrested with two
other men with the gun Land used and the money he took. The only thing that
would not have been there were counsel for Clay and Martin, who did nothing
more than state the obvious at Land’s trial - they were not the ones who actually
committed the robbery The evidence against Land was overwhelming A
separate trial for him would have made no difference That overwhelming
evidence would have still been there This allegation is without merit.
II`. The Baltimore, Maryland Robberies
Land argues that trial counsel was ineffective for eliciting testimony about a
string of robberies that occurred in Baltimore. There were apparently a number of
robberies of stores in Baltimore committed in a similar fashion by a black man
wearing a shirt with the word “security” on it. Land argues that this was unwise
because the jury believed that he committed those offenses and the Dollar General
robbery as well.
’trrial Tr. vol. A, 124,0¢1. 12, 2015.
17
Trial counsel contends that had the facts of this case been different he would
not have pursued this course of questioning, and in fact would have objected to
any testimony regarding the Baltimore robberies Trial counsel stated that he
pursued this specific line of questioning because the only plausible defense
available to Land was that it was not him on the surveillance video and that he just
happened to be in the same area at the same time wearing the same shirt as the
person who robbed the Dollar General store Trial counsel believed that evidence
of similar robberies being committed by someone else in Baltimore could go a
long way in supporting this defense lt would, according to trial counsel, allow
Land to point to someone else as the robber. Furthermore, trial counsel stated he
discussed with Land the risk that the jurors could infer that Land also committed
the Baltimore robberies Land agreed to that strategy That risk did not come to
fruition because a Dollar General security employee testified that the suspect in
the Baltimore robberies was not Land.19 Thus, Land was able to argue that he was
not the one that robbed the Dollar General store Trial counsel’s performance was
not deficient and it did not fall below an objective standard ofreasonableness.
The evidence on the Dollar General surveillance video showed the robber
wearing a black shirt with “security” written on it. Land’s contention that the
19Trial Tr. Vol. B, 79-80, Oct. 13, 2015.
18
person in the video was not him. ln an effort to bolster Land’s defense, trial
counsel introduced a line of questioning that suggested a similar string of
robberies that occurred in Baltimore by a person wearing a black shirt. Ultimately,
it was shown that Land was not the person that committed the robberies in
Baltimore. l'./og_ically, the line of thinking was that if someone else Was robbing
stores in Baltimore in a similar fashion and it was proven that Land was not that
person, then doubt could be raised that it was not Land on the Dollar General
surveillance video. This Was a relevant line of questioning and Land suffered no
prejudice because of it. Quite simply, it was just an effort that could not overcome
the overwhelming evidence against Land for the Dollar General store robbery
This allegation is without merit.
III. Tampering With Physical Evidence
Land argues that trial counsel was ineffective because he failed to raise
more than one issue on appeal. Land argues that trial counsel should have argued
that the trial court erred in denying Land’s motion for judgment of acquittal as to
the Tampering with Physical Evidence charge In Harrz's v. State, the Supreme
Court stated, “11 Del.C. § 1269 criminalizes neither inchoate tampering nor
tampering with items, but, rather, successful suppression of evidence Where
evidence is immediately retrievable by the police, an individual has failed to
19
actually suppress the evidence, and is therefore not guilty of tampering under
§1269.”20 In support of his argument, Land cites to co-defendant Clay’s appeal
before the Supreme Court. ln Clay v. State, the Supreme Court found that the gun
was immediately retrievable because Officer Wilson perceived Clay’s act of
suppression, thereby negating the charge of Tampering with Physical Evidence,z'
With respect to Land, the State argued that he attempted to conceal the gun, the
proceeds from the robbery, and the “security” shirt.
Land argues that his trial counsel should have raised the issue of 'l`ampering
with Physical Evidence on appeal. Trial counsel does not recall why he did not
raise the issue on appeal. Trial counsel stated that Land was 58 years old at the
time of sentencing when he was sentenced to over 50 years injail. Trial counsel
believes the reason he did not focus on the tampering charge was that he was
attempting to provide some tangible relief to Land for the lengthy sentence he
faced.
The Court notes that Land’s tampering actions were different than that of
his co-defendants Land was caught on camera with a gun and taking a significant
amount of money from a Dollar General store employee When he was arrested,
2° 991 A.2d 1135, 1138 (Del. 2010).
2' 164 A.3d 907, 915 (Dei. 2017).
20
Land had neither the gun nor the proceeds of the robbery on his person, lnstead,
the money was found on both Martin and Clay and Clay had possession of the
gun. The State’s argument focused on the fact that Land handed off the proceeds
of the robbery and the gun to his co-defendants and at that point the “act of
suppression” was completed As for the shirt, Land unsuccessfully attempted to
rid himself of it when he was arrested The Court would agree with Land that the
attempted disposal of the shirt could not form the basis of a tampering with
physical evidence charge, but it was not the sole piece of evidence the State
alleged he tampered with.
Tampering with Physical Evidence is a Class G felony carrying a possible
sentence of 0 to 2 years at Level 5. For this particular count, this Court sentenced
Land to 2 years at Level 5, suspended for l year at concurrent Level 3 probation
lt is obvious to see why trial counsel focused on Land’s constitutional right to a
speedy trial and not on a low-level felony If trial counsel was successful in the
appeal, Land would not be incarcerated As for the Tampering with Physical
Evidence conviction, the State is correct. The police did not perceive any
attempted act of suppression on the money or the gun committed by Land. At the
time of his arrest, Land had already suppressed the money and the gun by passing
them off to his co-defendants. If the sole piece of evidence alleged to be tampered
21
with was the “security” shirt, Land would be correct that the evidence would not
support the conviction, but that is not the case. Trial counsel was not ineffective
in his failure to raise this allegation This allegation is without merit.
CONCLUSION
Maurice Land’s Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.22
Very truly yours,
E. Scott Bradley
ESB :tll/jwc
cc: Prothonotary’s Office
Stephen W. Welsh, Esquire
81 =Zl Cl llZ NVl` hlUZ
AlNllOZJ XBSSDS
MJVlONUHlOHd 03`||.-1
22 l have vacated my decision dated November 14, 2018, denying
Defendant Maurice Land’s Motion for Postconviction Relief and reissued it this
date, January 24, 2019, so that Mr. Land may pursue a timely-appeal to the
Supreme Court.
22